Date: Sat, 9 Sep 2006 22:45:10 -0700 From: Norm Matloff To: Norm Matloff Subject: the likelihood of H-1B legislation this year To: H-1B/L-1/offshoring e-newsletter The enclosed article sums it up well. Given that the huge general immigration reform bill passed by the Senate earlier this year now seems stalled, the industry lobbyists have gotten Congress to pull out the H-1B-related provisions into a separate bill, called the SKIL Act. One of the lobbyists is quoted here as saying that this bill may be tacked on to an omnibus budget bill--a favorite tactic that has always worked in the past--or passed in the "lame duck" session in December, when no one is looking. I too think that it is quite likely that one of those two events will occur. The lobbyists have been going full-bore on this for a year now, getting a string of supporting editorials from newspaper editors, etc. And most significantly virtually no one in either party in Congress has spoken out against it. Readers, please note that this is more than just about H-1B. It's also about greatly liberalizing the employment-based green card program, which most H-1Bs aspire to. As with the H-1B provisions, the reforms on green card law in the bill also are geared to make it easier to hire foreign nationals and have them stay, and thus would have a very negative impact on U.S. citizens and permanent residents. It's again disappointing to see that Microsoft gets a free ride when they make claims to need H-1Bs. WashTech has shown several times that Microsoft's public claims about H-1Bs and offshoring fly in the face of their private actions. See http://heather.cs.ucdavis.edu/Archive/MicrosoftClaimBelied.txt http://heather.cs.ucdavis.edu/Archive/MicrosoftClaimBeliedMore.txt http://heather.cs.ucdavis.edu/Archive/MicrosoftH1BLobbying.txt Please note that I have written up a section-by-section analysis of the main parts of the SKIL Act, enclosed immediately after the article below. Norm http://www.informationweek.com/management/showArticle.jhtml?articleID=192503648 Time Is Running Out For H-1B Visa Cap To Be Raised--Or Is It? By Marianne Kolbasuk McGee InformationWeek Sep 6, 2006 02:00 PM The current cap of 65,000 H-1B visas for foreign workers—including techies—isn't likely to be raised before Oct.1, the start of fiscal 2007. But that's not stopping some American programmers from worrying or tech employers from lobbying. Mid-term election campaigning is going into full throttle, and because the U.S. Senate and House of Representatives don't agree on many big, hot-potato immigration issues, it's unlikely Congress will pass a comprehensive--and controversial-- immigration reform bill anytime soon. For one thing, Senate and House calendars are full, say Washington insiders. But despite their differences, the Senate and House immigration bills both have common provisions to raise the number of H-1B visas allotted annually to foreign workers from 65,000 to 115,000, with options to increase the cap by 20% yearly, based on employers' needs. Those increase proposals are also included in separate legislation introduced in May by Sen. John Cronyn (R-Tex.), whose "Securing Knowledge, Innovation and Leadership," or "Skil Bill," focuses only on H-1B and green-card-- or permanent residency--reform, and not on other sticky immigration issues, such as border security. "The senator would like to see the [Skil] bill move, but the calendar is quite full right now," says a Cronyn spokesman. Nonetheless, those bills' common H-1B-related provisions are fueling uneasiness among some U.S. tech workers and hopefulness among vendors, even though time seems to be running out for passage of a large immigration reform bill by current members of Congress. "Sometimes we think these things are dead, and then someone slips something through at 5 pm on a Friday," says Kim Berry, president of the Programmers Guild, an American IT worker advocacy group that opposes raising the H-1B cap. "I'm worried they'll stick these provisions onto another bill without a hearing," he says. Indeed, it's still possible that Congress will pass provisions as part of another bill or as separate legislation to raise the H-1B cap during a lame duck session before new members are sworn in next January, depending on the outcome of the elections, says Microsoft director of federal government affairs Jack Krumholtz. "There's still a window of opportunity Congress will pass H-1B and green card reform post-election," says Krumholtz. Microsoft and other tech vendors will continue "to push for high-skill relief" by lobbying for increases in the annual cap of H-1B visas and green-cards, which allow foreign workers to work permanently in the U.S. At Microsoft, "we have a couple thousand open technology positions that we're not able to fill," including development positions, says Krumholtz. "It's getting harder and harder to find people," he says. "There's increasing pressure to look for other avenues," including doing work outside the U.S. if talent can't be found here, he says. And despite recent layoffs in the tech industry—including Intel's announcement this week that it's eliminating 10,500 jobs—the specific talent Microsoft is looking for is "apples and oranges" compared to jobs being shed, Krumholtz says. "The jobs we're looking to fill are not just IT engineers," although Microsoft might call them that or "developers" internally," he says. Microsoft is seeking "top computer scientists" with advanced degrees and the "latest training and skill sets," he says. Each year, U.S. Citizenship and Immigration Services begin accepting petitions on April 1 for H-1B visas issued in the next fiscal year. For the last couple of years, the U.S. had received enough petitions for the annual allotment of 65,000 H-1B visas months before the new fiscal year begins. For fiscal 2007 beginning Oct 1, the U.S. hit its H-1B visa cap in late May 2006, about two months after the government began accepting requests for the petitions on April 1. Guide to Selected Portions of the SKIL Act Notes on section numbers: Note that the word "section" in the phrasing below refers to sections of the Immigration and Nationality Act (INA), which can be found in Chapter 12 of Title 8 of the United States Code (U.S.C., i.e. federal law). You can find the actual laws at www.law.cornell.edu/uscode/uscode08/usc_sup_01_8_10_12.html in Subchapters I (1101-1106) and II (Part I, 1151-1161 and Part II, 1181-1189) Sec. 101: In General- Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(5)) is amended... Comments: The main thrust here is to remove anyone who has a Master's degree or higher (in any field) from a U.S. university from the H-1B cap, thus effectively raising the cap beyond even the huge increase in Sec. 102 below. Sec. 102: Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended... Comments: Here the general yearly H-1B cap is raised from 65,000 to 115,000, with a 20% yearly increase after that if the cap is reached. Sec. 201: (a): Would exempt from green card caps: (F) Aliens who have earned a master's or higher degree from an accredited United States university. Comments: The effect of this provision would be as follows. The current procedure is that the foreign national must first find an employer to sponsor him for a green card, then undergo labor certification (which consists of the employer showing that no American is available for the job), then wait for the availability of a green card. Under the provision here, that last stage would be eliminated. That should speed up green card processing, thus shortening the time during which an H-1B is a de facto indentured servant, thus making foreign nationals less attractive to employers. But note that the first stage can take a while. The employer could stall even submitting a green card application for the worker, even more so since the bill would increase the time for the Optional Practical Training (OPT) phase of a student visa from one year to two. Or, the foreign national could bounce around several employers as an H-1B until he finds one who is willing to sponsor him for a green card, all the while being at the mercy of these employers. Note that there would be no restriction on field of study. Apparently the authors believe that people with Master's degrees in, say, Greek mythology, are in short supply. (H) Aliens who will perform labor in shortage occupations designated by the Secretary of Labor for blanket certification under section 212(a)(5)(A) as lacking sufficient United States workers able, willing, qualified, and available for such occupations and for which the employment of aliens will not adversely affect the terms and conditions of similarly employed United States workers. Comments: The section cited, 8 USC § 1182(a)(5)(C), is an occupation-wide exemption from labor certification. It was used for programmers back in the early 90s, but then DOL took the programmer category off their list after SoftPac howled. (I) Aliens who have earned a master's degree or higher in science, technology, engineering, or math and have been working in a related field in the United States in a nonimmigrant status during the 3-year period preceding their application for an immigrant visa under section 203(b). Comments: The section cited, 8 U.S.C. 1153(b), is the part of the code relating to employment-based immigration. By exempting these people from the cap, the thrust of this provision would be that a foreign national with a technical graduate degree who is sponsored for a green card by an employer would have to wait for no more than three years to get the green card, as opposed to the 6+ years often needed today. Note that the three-year period need not be all with the same employer, and that only the current employer need sponsor the worker for a green card. Also, the nonimmigrant visas could be not only H-1B but also other nonimmigrant visas, as discussed above. All these considerations would somewhat temper the problems I put in my scenario above. But the bottom line is that the foreign nationals would still be de facto indentured servants for three full years. Moreover, even after getting green cards and thus winning their freedom, they still would be young, thus cheaper than the average American. The legislation, by in effect focusing on new graduates, would swell the young segment of the labor market, thus exacerbating the problem we already have, of employers preferring to hire 25-year-olds to 40 year-olds. (J) Aliens described in subparagraph (A) or (B) of section 203(b)(1) or who have received a national interest waiver under section 203(b)(2)(B). Comments: These are 8 U.S.C. 1153(b)(1) and 8 U.S.C. 1153(b)(2), which basically deal with people of outstanding ability. They would now be exempted from the cap. I've pretty much supported giving special treatment to "the best and the brightest" (though I've also pointe out that they comprise a very small proportion of the H-1Bs), so I am OK with this provision. (K) The spouse and minor children of an alien who is admitted as an employment-based immigrant under section 203(b). Comments: So, the family members of the employers-sponsored immigrants would no longer count in the cap. The effect would be to greatly expand the cap, thus doing even greater harm to American workers. (b): Labor Certifications- Section 212(a)(5)(A)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)(ii)) is amended... Comments: This basically adds people with Master's degrees to the "Subject to Special Rule" clause in the above law, which allows those covered by the clause to be subject to a different kind of labor certification than other types of workers. At present, this means that during labor certification, the employer must merely demonstrate that he could not find Americans who are equally qualified as the alien, instead of demonstrating that he could not find Americans qualified for the job itself. The net effect would be to make it even easier than at present (which is already plenty easy) for the employer to claim that no American is available for the job that the employer wants to hire a foreign Master's holder for. Sec. 203: (a) In General- Section 101(a)(15)(F) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(F)) is amended to read as follows... Comments: At present, all holders of the F-1 student visa must attest that they plan to eventually return to their home countries. This provision would exempt those studying a program in "mathematics, engineering, technology, or the sciences leading to a bachelors or graduate degree" from this requirement. As the restriction was never a real problem (some students would have to try several times to get a visa, but they'd eventually get it), the impact of this part of this provision would be minimal. HOWEVER, this provision also would extend OPT from one year to two. The practical effect would be to give the foreign national more time in which to find an employer willing to sponsor him for a green card, and thus have the effect of adding even more people into the job market to compete with Americans. (b) Admission- Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by inserting `(F)(i),' before `(L) or (V)'. Comments: Changes consular officials' duties to conform with (a) above, i.e. they don't have to ask "Will you go home?"