New Reciprocity Fee Schedule
Recently, the U.S. State Department updated its Reciprocity Fee Schedule. Before applying for a Non-Immigrant Visa (including: H-1B, L-1 or O-1), the applicant should verify whether or not they will be required to pay a Reciprocity Fee and, if so, the current fee amount. (go to: http://travel.state.gov/visa/reciprocity/index.htm) Visa Applications sent to the U.S. State Department for revalidation will be rejected if the Reciprocity Fee is incorrect. The Visa Application Fee remains $100 for most visas, including H-1B and L-1. (This paragraph updated April, 2005).
Consular Web Sites
Before applying for a visa at an U.S. Consulate or Embassy, applicants should always consult their attorney or the particular U.S. Consulate or Embassy for its specific procedures in applying for a visa and processing time estimates. The U.S. State Department maintains a list of U.S. Consulates’ web sites at:
http://travel.state.gov/travel/tips/embassies/embassies_1214.html.
Processing times for H-1B Petitions filed at the California Service Center
The INS pause, imposed two weeks ago, on processing H-1B cap cases is ending today, according to the INS Director of Service Center Operations. Service Centers are being asked to process cases filed up to February 18, 2000. The principal reason for this cutoff is to allow the California and Vermont Service Centers to catch up with Texas and Nebraska, which were processing cases filed to approximately that date at the time the pause was instituted.
Current Pending Legislation to Increase H-1B Quota
Senate Leadership has indicated that S. 2045, the Hatch/Abraham H-1B Bill may come to the Senate floor for a vote within the next week (no specific date set).
By way of background, the Senate Judiciary Committee on March 9 marked up and passed (by a 16-2 vote) S. 2045, the American Competitiveness in the 21st Century Act. S. 2045 is sponsored by Judiciary Committee Chairman Orrin Hatch (R-UT) and Senator Spencer Abraham (R-MI), among others. The two Senators voting against the bill were Edward Kennedy (D-MA) and Russ Feingold (D-WI). Senate leadership originally hoped to bring the bill to the Senate floor for a vote the week of April 10, but postponed that schedule when time constraints prohibited quick consideration before the Easter recess. However, Majority Leader Trent Lott (R-MI), has stated it will be scheduled as soon as possible after the Senate reconvenes on April 25th.
During debate, the Committee adopted two amendments to the base bill: a Feinstein/Abraham provision that would redirect H-1B fees to K-12 education and National Science Foundation-run low-income college scholarship programs; and one offered by Joseph Biden (D-DE) that would address the so-called "digital divide" by providing funds to install computers and hire computer trainers at Boys and Girls Clubs nationwide. Both of these amendments, and the debate they generated, focus on the importance of education and training of U.S. workers and the need to retool our education system.
The Committee also defeated (by a 10-8 vote) a substitute amendment offered by Senator Kennedy. The substitute, which the Senator may introduce as a stand-alone bill, would:
 | Increase the H-1B cap to only 145,000 for the next three fiscal years, while providing an exemption from the cap for advanced degree holders. Additionally, the bill would require at least 45,000 visas in FY 2000, 50,000 in FY 2001, and 55,000 in FY 2002 go to advanced degree holders. |
| Increase the so-called "training" fee for H-1B petitions introduced by 1998’s American Competitiveness and Workforce Improvement Act (ACWIA). The fee would be on a sliding scale, with employers of 150 or less paying $1000, employers of 150-500 employees paying $2000, and the largest employers paying $3000. The substitute also would require smaller H-1B dependent employers (with at least 51 employees and 15% H-1Bs) to pay $3000. The fees would be directed primarily to new, short-term training programs under the Department of Labor. |
| Extend the no-layoff attestation required of dependent employers under ACWIA to six months before and after the filing of an H-1B visa petition and require employers to "make efforts to continually train and update the existing skills of incumbent employees and to promote such employees where possible." |
| Require the Department of Labor to conduct "an ongoing survey of the level of compliance by employers" with the provisions of the H-1B program. This "survey" would be conducted on a random sample of petitioning employers. |
Competing H-1B Legislation
The House of Representatives following the Senate lead, took up in March the issue of increasing the H-1B cap. Representative Lamar Smith (R-TX), Chairman of the House Immigration Subcommittee, along with Representatives Tom Campbell (R-CA), Bob Goodlatte (R-VA), and Chris Cannon (R-UT), introduced H.R. 3814, the Technology Worker Relief Act of 2000. The employer community strongly denounced this measure which included provisions that would increase the number of H-1B visas (by only 45,000 visas) for the current fiscal year alone, but tie this increase to the Department of Labor issuing final regulations implementing the 1998 H-1B law, thereby holding the additional visas hostage to bureaucracy. In addition, in order to apply for the additional visas, an employer must demonstrate that in the last year it has increased its overall employment of U.S. workers, its total payroll provisions in the United States, and its median salary levels. The increased employment and payroll provisions amount to a new no-layoff attestation on all employers and ignore the current business climate where many companies need to let go of unprofitable departments and projects, but may still need the particular expertise of an H-1B non-immigrant in a new project. Other provisions of the bill included permanent changes to the H-1B program, requiring that H-1B non-immigrants only work full-time (at least 35 hours per week) and eliminating experience equivalence to a degree for H-1B beneficiaries.
Following the introduction of the Smith bill, a bi-partisan group of Representatives, led by David Dreier (R-CA) and Zoe Lofgren (D-CA), introduced H.R. 3983 on March 15. The Helping to Improve Technology Education and Achievement (or HI-TECH Act) has strong bi-partisan support from key Representatives, including Dick Armey (R-TX), the Majority Leader, Tom Davis (R-VA), the chairman of the Republican Congressional Campaign Committee, and Representative Patrick Kennedy (D-RI), chairman of the Democratic Congressional Campaign Committee. Minority Leader Richard Gephardt (D-MO) also has indicated his support for the measure. H.R. 3983 would:
| Increase the limit on H-1B visas to 200,000 for FYs 2001, 2002 and 2003, and "set aside" 10,000 visas for employees of higher educational institutions, and government and non-profit research institutions, and 60,000 visas for individuals who hold masters or higher degrees (or their equivalent). |
| Deal with the problems resulting from the per-country limits in business immigration by allowing unused visas to spill over to over-subscribed countries (China and India). |
| Allow "carryover visas" from FY 99 that were counted against the FY 2000 cap to go back to FY 99, thereby freeing additional visas for this year. |
| Allow extension of H-1B status for those hitting the six-year limit due to INS and Department of Labor (DOL) delays in processing immigrant visa cases or the per country limit. |
| Recapture employment-based immigrant visas that were "lost" in the last two fiscal years because of INS delays in processing. |
| Allow companies that must document U.S. recruiting to use Internet recruiting exclusively; mandate that INS and DOL institute Web-based case tracking systems within one year, and institute a Technology Advisory Council for those agencies to look at developing web-based case filing systems. |
| Require employers to file annually with DOL copies of the W-2 forms for their H-1B employees. |
| Increase the "training" fee to $1000 for initial H-1B petitions—the fee remains $500 for extensions and change of employers. |
| The bill also redirects the H-1B fees to student loan forgiveness for math and science teachers, "Upward Bound" projects in science and mathematics education, low-income college scholarships, and regional skills training alliances. |
The business community immediately hailed this bill as a balanced approach that would allow for a reasonable increase in the cap while also emphasizing the continuing need to educate and train U.S. workers for future high-tech positions. While some proponents still are concerned about the impact of the increased visa fees on non-profits, small businesses and state and local governments that are increasingly using the H-1B program, H.R. 3983 offers the best chance to successfully move an H-1B bill through the House. In fact, this measure continues to generate bipartisan support as evidenced by growing a list of co-sponsors from both sides of the aisle.
However, Chairman Smith recently introduced a "new" version of his H-1B bill, H.R. 4227,and scheduled a markup in the Immigration Subcommittee directly after introduction. Still named the Technology Worker Temporary Relief Act, the bill is very similar to the earlier H.R. 3814. While this new bill would eliminate the H-1B cap through FY 2002, it also would maintain most of the same restrictive provisions on the use of these visas that were in his earlier bill: tying additional visa numbers to the INS and Department of Labor (DOL) issuing regulations from ACWIA; requiring employers to attest that they have hired more U.S. workers and have a higher total and average payroll than in the previous year; eliminating part-time H-1Bs and work experience equivalencies; and requiring employers to have gross assets of at least $250,000. H.R. 4227 also adds additional poison pills, including requiring DOL to post on the Internet the name and personal data of all H-1B recipients, setting a minimum pay of $40,000 for recipients, and eliminating the use of B-1 visas in lieu of H-1Bs. The bill also would mandate that the State Department count H-1Bs and certify foreign degrees. Finally, H.R. 4227 would require that all H-1B professionals in teaching positions demonstrate English language proficiency.
In his opening statement at the subcommittee markup, Representative Smith reiterated that "there is still no objective, credible study that documents a shortage of American high-tech workers," and called for increasing the skill levels of family-based immigrants. Democratic members urged Chairman Smith to address other important immigration issues this year, including granting relief to Central Americans who were bypassed by recent laws and individuals who were unfairly blocked by the government from applying for the amnesty program in the mid-eighties. Other members of the subcommittee urged that agricultural worker issues be addressed as well. While Representative Lofgren offered H.R. 3983 as a substitute for the Chairman’s bill, the amendment was withdrawn on a technicality, and H.R. 4227 was passed by a voice vote, although many Democrats voted against the bill.
Following the markup, employer groups announced that H.R. 4227 does not respond to the need for educated professionals because it makes any additional numbers virtually inaccessible, and reiterated their support of H.R. 3983. Since Representative Dreier (who is Chairman of the House Rules Committee -- which functions as the arbiter for how and which bills get to the floor for a vote) is the original sponsor of H.R. 3983, employer advocates are hopeful that his bill will be the vehicle that ultimately passes the House.
Backlog Reduction Bills Proposed in Congress
Fed up with continuing reports of growing backlogs and delays at the INS, several Members of Congress are looking at legislative solutions. Senator Dianne Feinstein (D-CA) has announced that she shortly will introduce a bill to address the huge backlogs plaguing the INS. The bill would authorize appropriations for INS backlog reduction, set mandatory minimum processing times for immigration benefit applications, and require INS to report regularly on its progress toward eliminating the backlogs. In the House, Representative John Conyers (D-MI) also is considering legislation to address the backlogs, as is Representative Zoe Lofgren (D-CA). Along with several colleagues from California, Representative Lofgren held a February hearing in San Jose at which a dozen witnesses chronicled their frustrations and difficulties dealing with delays and backlogs at the INS offices in that state.
Senator Feinstein’s bill, and the interest shown by the other Members of Congress, will send an important message to the INS that immigration customers no longer will tolerate tremendous backlogs that hurt millions of people seeking to become U.S. citizens, flee political persecution, and reunite with their families, and businesses seeking to employ foreign workers who are needed for continued economic growth. This measure is an important first step in getting the INS to provide quick, effective and fair adjudication for the millions of people whose applications have languished in the bureaucracy.
While the bill sends the signal that money is the major problem, it does not actually appropriate needed funds. For the past few years, Congress has provided directly appropriated funds to INS enforcement, while the adjudications branch has been subsisting on user fees – the funds that people and businesses pay when they file applications. At the same time, Congress has imposed numerous unfunded and conflicting mandates on the INS for which the agency has paid from the only pot of money they have access to: the fees paid by applicants for immigration benefits.
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