98-531 EPW
CRS Report for Congress
Received through the CRS Web
Immigration: Nonimmigrant H-1B Specialty
Worker Issues and Legislation
Updated August 4, 1998
Ruth Ellen Wasem
Specialist in Social Legislation
Education and Public Welfare Division
Congressional Research Service ˜
The Library of Congress
ABSTRACT
The largest category of temporary alien workers are the H-1B nonimmigrants —
professionals who work in specialty occupations. This report describes the H-1B program
and how it differs from permanent immigrant admissions that are employment based. It
discusses concerns over past abuses of the H-1B program as well as why employers in “high
tech” industries now are pressuring Congress to eliminate or raise the annual admissions
ceiling of 65,000. Efforts to protect the interests of U.S. workers are described. Legislation
addressing these various concerns is tracked by this report, which will be updated as action
occurs.
Immigration: Nonimmigrant H-1B Specialty Worker Issues
and Legislation
Summary
The 105 Congress is once again consider
th
ing legislation pertaining to temporary
alien workers, striving to balance the needs of U.S. employers with opportunities for
U.S. workers. The largest category of these temporary alien workers are the H-1B
nonimmigrants — professionals who work in specialty occupations. For the first
time the numerical limits on H-1B visas were reached prior to the end of FY1997,
and the FY1998 ceiling was reached in May. Employers in “high tech” industries
especially are urging Congress to eliminate the ceiling of 65,000, and legislation
raising the H-1B ceiling as well as addressing other reforms has passed the Senate
(S.1723). The House Judiciary Committee has reported a bill (H.R. 3736 ) that
would temporarily raise the ceiling and address perceived abuses.
Both the Senate passed bill (S.1723) and the House-reported bill (H.R. 3736)
would raise the ceiling for the next few years, though each bill approaches the
increase differently. Each bill would add whistle blower protections for individuals
who report violations of the H-1B program and would increase the penalties for
willful violations of the H-1B program. H.R. 3736 limits the number of H-1B visas
given to aliens who are health care workers to 5,000 annually, and S. 1723 creates a
new visas category of H-1C with a ceiling of 10,000 annually.
Many consider the provisions aimed at protecting U.S. workers as the most
controversial portions of S. 1723 and H.R. 3736. While S. 1723 does add provisions
penalizing firms that lay-off U.S. workers and replace them with H-1B workers if the
firms have violated other attestation requirements, amendments that would have
required prospective H-1B employers to attest that they were not laying off U.S.
workers and that they tried to recruit U.S. workers failed on the Senate floor. H.R.
3736 includes lay-off protection provisions and recruiting requirement provisions
similar to those that the Senate rejected. On the other hand, S. 1723 has language
that would expand the education and training of U.S. students and workers in the
math, science, engineering and information technology fields.
Pre-conference discussions between Senate and House Republicans late in July
yielded a compromise on key points of difference. Foremost, the agreement would
add new attestation requirements for recruitment and lay-off protections, but would
only require them of firms that are “H-1B dependent” (at least 15% of workforce are
H-1Bs workers). Education and training for U.S. workers would be funded by a $250
fee paid by the employer for each H-1B worker that is hired. The ceiling set by the
compromise would be 85,000 in FY1998, 95,000 in FY1999, 105,000 in FY2000,
and 115,000 in both FY2001 and FY2002. This compromise addresses some — but
not all — of the concerns of the Clinton Administration, so a presidential veto threat
of the Republican compromise was announced late last week. House Democrats plan
to offer H.R. 3736 as reported by the Judiciary Committee (with a provision for
education and training) when the issue comes to the floor. Supporters of raising the
H-1B cap had hoped the legislation would be passed and signed before the August
recess. The legislation is on the House floor calendar for the first week of August.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Controversies and Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Legislative Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
104 Congress
th
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
105 Congress
th
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
List of Tables
Table 1. Major Features of Bills Revising H-1B Provisions . . . . . . . . . . . . . . . . 8
Immigration: Nonimmigrant H-1B Specialty
Worker Issues and Legislation
Introduction
The 105 Congress is once again consider
th
ing legislation pertaining to temporary
alien workers, striving to balance the needs of U.S. employers with protection and
opportunities for U.S. workers. The largest category of temporary alien workers is
the H-1B nonimmigrants — professionals who work in specialty occupations. For
the first time the numerical limits on H-1B visas were reached prior to the end of
FY1997, and the FY1998 ceiling was reached in May. Employers in “high tech”
industries especially are urging Congress to eliminate the ceiling of 65,000, since
many information technology firms reportedly rely on temporary foreign workers
who have specialized training. Legislation raising the H-1B ceiling as well as
addressing other reforms has passed the Senate (S.1723). The House Judiciary
Committee has reported a bill (H.R. 3736 ) that would temporarily raise the ceiling
and address perceived abuses.
This report provides a brief explanation of current law and discusses the
concerns and controversies that surround this issue. In addition to a legislative history
of action during the 104 Congress, this report provides a table comparing the main
th
features of S. 1723 as passed by the Senate with H.R. 3736 as reported by the House
Judiciary Committee. Features of the compromise reached late last week and
finalized on July 29, 1998, are included in the table.
Current Law
Temporary Foreign Workers. A nonimmigrant is an alien legally in the United
States for a
specific purpose and a
temporary period of time. There are over 20
major nonimmigrant visa categories specified in the Immigration and Nationality
Act, and they are commonly referred to by the letter that denotes their section in the
statute. The major nonimmigrant category for temporary workers is the H visas. The
statutory limit for H-1B visas issued is 65,000 annually. The largest classification of
H visas is the H-1B workers in specialty occupations who may stay for a maximum
of 6 years.
1
1 The regulations define “specialty occupation” as requiring theoretical and practical
application of a body of highly specialized knowledge in fields of human endeavor
including, but not limited to, architecture, engineering, mathematics, physical sciences,
social sciences, medicine and health, education, law, accounting, business specialties,
theology and the arts, and requiring the attainment of a bachelor’s degree or its equivalent
as a minimum. Law and regulations also specify that fashion models deemed “prominent”
(continued...)
CRS-2
Any employer wishing to bring in an H-1B nonimmigrant must attest in an
application to the Department of Labor (DOL) that: the employer will pay the
nonimmigrant the greater of the actual wages paid other employees in the same job
or the prevailing wage for that occupation; the employer will provide working
conditions for the nonimmigrant that do not cause the working conditions of the other
employees to be adversely affected; and, there is no strike or lockout. The employer
also must post at the workplace the application to hire nonimmigrants. DOL reviews
the application for completeness and obvious inaccuracies. Only if a complaint
subsequently is raised challenging the employer’s application will DOL investigate.
If DOL finds the employer failed to comply, the employer may be fined, denied the
right to apply for additional H-1Bs, and may be subject to other penalties. The
prospective H-1B nonimmigrants must demonstrate that they have the requisite
education and work experience for the posted positions. Petitions are approved for
periods up to 3 years, and an alien can stay a maximum of 6 years on an H-1B visa.
The demand for H-1B workers is increasing, as the number of attestations filed
— often for more than one job opening — has grown from 53,485 in FY1992 to
180,739 in FY1997. DOL certified 398,324 job openings in FY1997. In FY1996
computer-related occupations became the largest category and continues to lead in
petitions approved for H-1Bs, going from 25.6% in FY1995, to 41.5% in FY1996,
to 44.4% of the openings approved in FY1997. Therapists — mostly physical
therapists, but also some occupational therapists, speech therapists and related
occupations — fell from over half (53.5%) of those approved in FY1995 to one-
quarter (25.9%) in FY1997. The other notable occupational categories in FY1997
were electrical engineers (3.1%), auditors and accountants (2.4%), university faculty
(2.0%), and physicians and surgeons (1.8%).2
Permanent Employment-Based Immigration. Many people confuse H-1B
nonimmigrants with permanent immigration that is employment-based. If an
employer wishes to hire an alien to work on a permanent basis in the United States,
the alien may petition to immigrate to the United States through one of the
employment-based categories. The employer “sponsors” the prospective immigrant,
and if the petition is successful, the alien becomes a legal permanent resident. Many
3
H-1B nonimmigrants may have education, skills, and experience that are similar to
the requirements for three of the five preference categories for employment-based
immigration: priority workers — i.e., persons of extraordinary ability in the arts,
sciences, education, business, or athletics, outstanding professors and researchers;
and, certain multinational executives and managers (first preference); members of the
professions holding advanced degrees or persons of exceptional ability (second
1 (...continued)
may enter on H-1B visas.
2 For further analysis of these DOL data, see: CRS Report 98-462,
Immigration and
Information Technology Jobs: The Issue of Temporary Foreign Workers, by Ruth Ellen
Wasem and Linda Levine.
3 There are also per-country numerical limits. For more information, see: CRS Report 94-
146,
Numerical Limits on Permanent Admissions, by Joyce C. Vialet and Molly Forman.
CRS-3
preference); and, skilled workers with at least 2 years training and professionals with
baccalaureate degrees (third preference).4
Employment-based immigrants applying through the second and third
preferences must have job offers for positions in which the employers have obtained
labor certification. The labor certification is intended to demonstrate that the
immigrant is not taking jobs away from qualified U.S. workers, and many consider
the labor certification process far more arduous than the attestation process used for
H-1B nonimmigrants. More specifically, the employer who seeks to hire
5
a
prospective immigrant worker petitions with the INS and the Department of Labor
(DOL) on behalf of the alien. The prospective immigrant must demonstrate that he
or she meets the qualifications for the particular job as well as the preference
category. If the DOL determines that a labor shortage exists in the occupation for
which the petition is filed, labor certification will be issued.6 If there is not a labor
shortage in the given occupation, the employer must submit evidence of extensive
recruitment efforts in order to obtain certification.
While the demand for H-1B workers has been exceeding the limit, the number
of immigrants who were admitted or adjusted under one of the employment-based
preferences in FY1996 — 117,499 — was considerably fewer than the statutory limit
of 140,000. The first and second preferences fell far short of the almost 40,040
available to each category, with 27,501 and 18,462 respectively. The third preference
drew on some of the unused numbers of the first and second preferences to exceed
the admissions numbers allocated to it, reaching 62,756 in FY1996. Those H-1B
workers who are from India (reportedly about 44% of H-1Bs in FY1998) do face a
backlog of several years if they petition for a second or third preference visa.
Controversies and Concerns
Over the past few years, the media aired several stories of U.S. workers who
have been laid off and replaced by nonimmigrant workers, notably in the information
technology industry (often through subcontractors with fewer benefits). In some of
these accounts, the U.S. workers have been asked to train their foreign replacements.
In addition, some have asserted that employers are bringing in H-1Bs rather than
sponsoring legal permanent aliens because it is much more difficult for an H-1B to
change jobs (as any new employer would also have to qualify to bring in the H-1B).
In 1995, the DOL Inspector General found widespread abuses of the H-1B program,
and former Secretary of Labor Robert Reich argued for changes in the H-1B
4 Third preference also includes 10,000 “other workers” i.e., unskilled workers, with
occupations in which U.S. workers are in short supply.
5 Certain second preference immigrants who are deemed to be “in the national interest” are
exempt from labor certification.
6 Through regulation, DOL has established the “Schedule A” listing of occupations for
which shortages have already been determined; these occupations are physical therapists,
professional nurses, and those of exceptional ability in the sciences or the arts. “Schedule
B” conversely lists the occupations for which shortages do not exist and for which the hiring
of immigrants would adversely affect U.S. workers; these 49 occupations range from
assembler to yard workers.
CRS-4
provisions so DOL could take action against employers who displace U.S. workers
with nonimmigrants. The final 1996 DOL Inspector General investigation was
critical of the finding that most labor certifications for legal permanent immigrants
were filed on behalf of foreign workers who were already working for the sponsoring
employer, fueling complaints that H-1B workers were used to “leap-frog” the more
stringent permanent labor certification process.
Some, however, think DOL had already gone too far in regulations effective in
January 1995, maintaining that they burden firms who hire only a few nonimmigrants
with requirements aimed at large scale hiring abuses. Last year, DOL also made
changes in how it processes permanent labor certification petitions, aimed at
discouraging “restrictive requirements” that enable an employer to build a job offer
around a particular foreign worker already on the job. These new procedures,
however, do expedite the processing of those petitions that do not have restrictive
requirements.
Most recently, employers in the information technology industry maintain that
they are unable to find qualified U.S. workers and are urging Congress to eliminate
the 65,000 cap on H-1B workers. They assert that despite increasing salaries and
offering education and retraining programs, they are experiencing a shortage. They
point out that enrollment in computer science and engineering degrees declined by
42% from 1986 to 1995 and that many of those who major in computer science and
engineering are foreign students. Some argue that they will not be able to stay in
business without expedient access to nonimmigrant workers with the requisite skills.
Others express fear the cap on H-1B visas may prevent firms from hiring the caliber
of workers necessary to stay competitive.7
While few are opposed to ensuring that the information technology industries
have access to needed foreign workers if a shortage exists, many are concerned that
simply raising the cap on the H-1Bs will not deal with the long term problems of the
perceived labor shortage. Many maintain that any increase in temporary foreign
workers should be viewed as a short-term measure and that some type of incentives
to increase U.S. enrollments in computer science and engineering programs as well
as continuing education and training for U.S. workers should be the core of the long-
term policy response. Some argue that the natural market forces should be allowed
to operate so that wages go up when shortages occur and that the resulting higher
salaries encourage more people to pursue computer science and engineering careers.
Others counter that this scenario does not deal with the immediate need for
skilled workers and that these higher wages will push firms to relocate abroad —
where the sought-after foreign workers now reside. Whether these foreign
governments can guarantee adequate protection of intellectual property rights and
prevent copyright infringements remains a question that others raise in this debate
over the possible relocation of information technology firms.
7 See, for example, CRS Report 98-462,
Immigration and Information Technology Jobs:
The Issue of Temporary Foreign Workers, by Ruth Ellen Wasem and Linda Levine.
CRS-5
Legislative Issues
104 Congress.
th
During the previous Congress, the major immigration bill
reported by the Senate Committee on the Judiciary Subcommittee on Immigration
(then S. 1394) had rather strong language regarding the employment of H-1Bs which
was deleted by the full committee. It would have required employers to: attest that
they tried to recruit U.S. workers; offer prevailing
compensation (i.e., not just
prevailing wages); contribute to a training fund for U.S. workers; and, to take
“timely, significant, and effective steps” to end dependence on nonimmigrant
workers.
S. 1665 as reported by the Senate Judiciary Committee and the House-passed
H.R. 2202 were quite similar in that they tried to strike a balance between protecting
U.S. workers and serving U.S. business interests. Both would have added provisions
that would have required employers who lay off U.S. workers 6 months prior to filing
the application or within 90 days after filing the application to pay H-1B replacement
workers 110% of prevailing wages. They also would have 1) defined employers who
have at least 15% to 20% (depending on firm size) of their employees who are H-1B
nonimmigrants as “H-1B dependent;” 2) waived “non H-1B dependent employers”
from certain regulations regarding the determination of prevailing wages and the
posting of notices of intent to hire nonimmigrants; and 3) required “H-1B dependent
employers” to take specified steps to reduce dependency. They would have
furthermore discouraged job contractors who recruit H-1B nonimmigrants from
placing a nonimmigrant with another employer who had recently laid off U.S.
workers. The Senate-passed H.R. 2202, however, did not include the H-1B
provisions, and the conferees deleted the H-1B provisions. The Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the
Omnibus Consolidated Appropriations Act, 1997, (P.L. 104-208), was silent on the
H-1B question.
105 Congress.
th
The Senate Judiciary Immigration Subcommittee held a
hearing February 25, 1998, on “the high-tech worker shortage and U.S. immigration
policy,” and in response Chairman Spencer Abraham, introduced the “American
Competitiveness Act” (S. 1723) aimed at the perceived shortage of information
technology workers. The Senate Judiciary Immigration Subcommittee marked up
S. 1723 on April 1, 1998, and the Senate passed the legislation on May 18, 1998.
In terms of the H-1B category, the FY1998 ceiling would be 95,000 in the
Abraham bill. In order to free up more H-1B visas, S. 1723 would establish a
separate category (H-1C) for health care workers (other than physicians) with a limit
of 10,000, beginning in FY1999. The total number of H-1Bs admitted in FY1999-
FY2002 would be based upon a formula that deducts 10,000 from the previous year’s
total admissions but adds any unused H-1C visas from the previous year. Up to
20,000 unused visas allocated the previous year to the H-2B category for unskilled
(nonagricultural) workers would also be available for H-1Bs during FY1999-
FY2002. S. 1723 would also provide, under specified circumstances, exemptions
from the legal permanent resident admissions ceilings set for each country for H-1Bs
adjusting as employment-based immigrants.
CRS-6
S. 1723 would increase penalties for violations of the H-1B and H-1C programs
and would allow DOL to conduct spot inspections of employers on a random basis
during the first 5 years after they have been found to
willfully violate the program.
As reported, S. 1723 provides additional fines and penalties for firms who have laid
off or replaced U.S. workers if they also have willfully failed to meet requirements
for working conditions, prevailing wages, or strike protections. The bill would add
a definition of “prevailing wages” to the statute as well as a requirement that the
prevailing wages for occupations at institutions of higher education or nonprofit and
federal research institutions be calculated separately. Additionally, the bill would
transfer certain authorities for approving attestations from the Secretary of Labor to
the Attorney General. A whistle blower protection provision for persons reporting
violations of the H-1B program is included.
As passed, S.1723 amends the Higher Education Act of 1965 to enable states
to use federal higher education funds to award scholarships in math, science and
engineering. It also authorizes demonstration projects for worker training to provide
technical skills through the Job Training Partnership Act.
Senators Kennedy and Feinstein, also members of the Senate Judiciary
Immigration Subcommittee, introduced legislation, “High-Tech Immigration and the
United States Worker Protection Act” (S. 1878). The Kennedy-Feinstein bill would,
among other things, provide for a temporary increase (FY1998-FY2000) in H-1Bs,
up to 90,000 each fiscal year. S. 1878 would establish training programs for U.S.
workers that would be funded by a $250 application fee paid by employers seeking
to hire H-1B nonimmigrants. As well as including provisions for lay-off protections,
it would add recruitment requirements. Senator Kennedy offered amendments for
lay-off protections and recruiting requirements to S. 1723 on the Senate floor, but the
amendments did not pass.
The Chair of the House Judiciary Immigration Subcommittee, Lamar Smith,
introduced his legislation addressing H-1B (H.R. 3736) after holding hearings April
21, 1998, on “immigration and America’s workforce for the 21 century.” On April
st
30, the House Judiciary Immigration Subcommittee ordered reported H.R. 3736, the
“Workforce Improvement and Protection Act of 1998.” The House Judiciary
Committee marked up the bill on May 20, reporting it with several amendments.
The Smith bill would provide increases in the H-1B ceilings over 3 years,
yielding totals of 95,000 in FY1998, 105,000 in FY1999 and 115,000 in FY2000.
H.R. 3736 addresses the concerns of U.S. workers in various ways, most notably by
adding provisions that would require employers to attest that they have not laid off
U.S. workers within 6 months prior to filing the application or within 90 days after
filing the application and that they have taken significant and timely steps to recruit
U.S. workers. H.R. 3736 broadens DOL’s authority to initiate complaints and
investigate employers who are “H-1B dependent.” It also increases the enforcement
(e.g. spot investigations during probationary period) and penalties of employers
CRS-7
found to have
willfully violated the H-1B provisions. It includes a whistle blower
protection provision for those who report violations of the H-1B program.8
Pre-conference discussions between Senate and House Republicans yielded a
compromise on key points of difference between S. 1723 and H.R. 3736. Foremost,
the agreement would add the attestation requirements for recruitment and lay-off
protections, but would only require them of firms that are “H-1B dependent.” The
penalties provisions would be drawn from H.R. 3736. Education and training for
U.S. workers would be funded by a $250 fee paid by the employer for each H-1B
worker that is hired. Health care workers would be limited to 7,500 annually. The
ceiling set by the compromise would be 85,000 in FY1998, 95,000 in FY1999,
105,000 in FY2000, and 115,000 in both FY2001 and FY2002, and there would be
no offset by reducing admissions in other visa categories.9
This compromise addresses some — but not all — of the concerns of the
Clinton Administration. A presidential veto threat of the Republican compromise
was announced at the end of July, reportedly because the compromise language
would include only a $250 fee for education and training and the recruitment and lay-
off protections would be limited to H-1B dependent employers. When the legislation
comes to the floor, House Democrats, notably Representatives Mel Watt, Howard
Berman, and Ron Klink, plan to offer H.R. 3736 as reported by the Judiciary
Committee, except that they have added a $500 fee (paid by the employer for each
H-1B worker that is hired) for the education and training of U.S. students and
workers.
10
Supporters of raising the H-1B cap had hoped the legislation would be passed
and signed before the August recess. The legislation was scheduled to go to the
House floor at the end of July but was pulled. It is now on the House floor calendar
for this first week of August.
8 For a detailed side-by-side comparison of S. 1723, H.R. 3736, and current law, see: CRS
Congressional Distribution Memorandum,
Side-by-Side Comparison of H-1B Immigration
Legislation: S. 1723, H.R. 3736, and Current Law, by Joyce Vialet and Ruth Ellen Wasem,
June 16, 1998.
9 This discussion of the pre-conference agreement is based upon legislative language that
is Representative Lamar Smith’s amendment to H.R. 3736, dated July 29, 1998.
10 This discussion of the House Democratic alternative is based upon legislative language
that is Representative Melvin Watt’s amendment to H.R. 3736 as reported, dated July 30,
1998.
CRS-8
Table 1. Major Features of Bills Revising H-1B Provisions
Comparing S. 1723, H.R. 3736, and Current Law
H.R. 3736
July 29, 1998
Major
S. 1723
(House-
amendment to
features
Current law
(Senate-passed)
reported)
H.R. 3736
Ceiling for
65,000 annually
FY1998 is
FY1998 is 95,000
FY1998 is
H-1B
for H-1B
95,000;
FY1999 is
85,000
specialty
nonimmigrants
total number
105,000
FY1999 is
workers
FY1999-
FY2000 is
95,000, FY2000
FY2002 is based
115,000
is 105,000,
upon a formula
FY2001 and
FY2001 and
that deducts
thereafter is
FY2002
10,000 from the
65,000
are 115,000;
previous year’s
thereafter is
total admissions
65,000
but adds any
unused visas
from another
category (S.
1723 would
create H-1C for
health care
workers) from
the previous
year
Offset or
None
None
H-2B (unskilled
None
reductions in
nonagricultural
other
workers) are
categories
limited to 36,000
in FY1998,
26,000 in
FY1999, 16,000
in FY2000 and
then restored to
66,000 in FY2001
Wage
Actual wages
Prevailing wages
Current law
Prevailing wages
requirements
paid to other
for occupations
for occupations
employees in
at institutions of
at institutions of
the job
higher education
higher education
classification or
and nonprofit or
and nonprofit or
prevailing
federal research
federal research
wages —
institutes are
institutes are
whichever is
calculated
calculated
higher
separately from
separately from
all other firms
all other firms
Effect on
No adverse
Current law
Current law
Current law
working
effects on U.S.
conditions
workers
Strike or lock
H-1B workers
Current law
Current law
Current law
out
cannot be used
protections
as striker
replacements
CRS-9
Comparing S. 1723, H.R. 3736, and Current Law
H.R. 3736
July 29, 1998
Major
S. 1723
(House-
amendment to
features
Current law
(Senate-passed)
reported)
H.R. 3736
Lay-off
None
Provides
Adds requirement
Adds
protections
additional fines
for employers to
requirement for
and penalties for
attest that they
H-1B dependent
firms who have
have not laid off
employers
laid off or
U.S. workers
(defined as firms
replaced U.S.
within 6 months
having at least 51
workers if
they
prior to filing the
employees, 15%
also have
application or
of whom are H-
willfully failed to
within 90 days
1Bs, excluding
meet working
after filing the
those earning at
conditions or
application (with
least $60,000 or
strike
exemptions for
having masters
protections
certain higher
degrees) to attest
education
that they have
employers)
not laid off U.S.
workers within
90 days prior to
filing the
application or
within 90 days
after filing the
application;
sunsets after
FY2002
Recruitment
None
None
Employers must
H-1B dependent
requirements
attest they have
employers must
taken significant
attest they have
and timely steps
taken good faith
to recruit U.S.
steps to recruit
workers
U.S. workers;
sunsets after
FY2002
Enforcement
Department of
DOL may
DOL may initiate
DOL may
authority
Labor (DOL)
perform random
complaints and
perform random
can only
inspections of
investigate those
inspections of
investigate
firms who are on
employers who
firms who are on
complaints
probation for
are “H-1B
probation for
past violations
dependent”; DOL
past violations;
may perform
an arbitrator
random
from the Federal
inspections of
Mediation and
firms who are on
Conciliation
probation for past
Service will
violations
handle claims of
U.S. workers
who argue
displacement.
CRS-10
Comparing S. 1723, H.R. 3736, and Current Law
H.R. 3736
July 29, 1998
Major
S. 1723
(House-
amendment to
features
Current law
(Senate-passed)
reported)
H.R. 3736
Fines for
Fines are $1,000
Replaces $1,000
Adds $5,000 fine
Adds $5,000 fine
violating H-
fine with $5,000
for willful
for willful
1B program
fine for
willful
violations; civil
violations; civil
violations; civil
monetary
monetary
monetary
penalties not to
penalties not to
penalties not to
exceed $25,000
exceed $25,000
exceed $25,000
Whistle
No
Yes
Yes
Yes
blower
protection
Processing
Department of
Department of
Department of
Department of
and approval
Labor
Justice
Labor
Justice
of employer
attestations
Labor market
None
National Science
U.S. General
National Science
studies
Foundation
Accounting
Foundation study
study of high
Office study of
of high
technology labor
high technology
technology labor
market needs
labor market
market needs and
needs and age
Congressional
discrimination in
Research Service
the information
study of age
technology field
discrimination in
the information
technology field
Education
None
Enables states to
None [The Watt
Add a $250 fee
and training
use federal
amendment is
paid by
of U.S.
higher education
H.R. 3736 as
employers for
workers
funds to award
reported, except it
each H-1B they
scholarships in
would add a $500
hire; funds
math, science
fee paid by
equally divided
and engineering;
employers for
between
also authorizes
each H-1B they
Departments of
demonstration
hire; funds
Education (math,
projects for
equally divided
engineering and
worker training
between
computer science
to provide
Departments of
scholarships) and
technical skills
Education (math,
Labor (job
engineering and
Training);
computer science
sunsets after
scholarships) and
FY2002.
Labor (job
Training); sunsets
after FY2002]
Duration of
3 years per visa,
Current law
Those issued
Current law
visa
6 years total per
above the 65,000
nonimmigrant
are limited for a
total of up to 4
years
CRS-11
Comparing S. 1723, H.R. 3736, and Current Law
H.R. 3736
July 29, 1998
Major
S. 1723
(House-
amendment to
features
Current law
(Senate-passed)
reported)
H.R. 3736
Health care
No special
Creates H-1C
Limits health care
Limits health
workers
provisions
visa for health
workers entering
care workers
care workers
under H-1B to
entering under
(other than
5,000 annually
H-1B to 7,500
physicians)
annually,
which is limited
FY2000-FY2002
to 10,000
annually
In addition to these bills, the ranking minority member of the Judiciary
Committee, Representative John Conyers, has introduced the “Protecting American
Workers Act of 1997" (H.R. 119) which would bar employers from hiring H-1B
nonimmigrants if they had laid off U.S. workers either 6 months prior to or 90 days
after filing the application. H.R. 119 would require employers to: attest that they
tried to recruit U.S. workers; offer prevailing compensation; contribute to a training
fund for U.S. workers; and, take steps to end dependence on nonimmigrant workers.
It also would tighten up the requirements for job contractors and would increase the
criminal penalties for misrepresentation. Additionally, H.R. 119 would reduce the
maximum stay from 6 to 3 years and would make it more difficult for H-1Bs to
subsequently adjust to legal permanent resident status by reinstating the foreign
residence requirement that was removed by the Immigration Act of 1990.
Concern that aliens meet the work experience requirements of both H-1B and
the employment-based preferences for legal permanent residence by working in the
United States illegally prompted Representative Elton Gallegley to introduce H.R.
471, the “Illegal Alien Employment Disincentive Act of 1997.” H.R. 471 would
prevent aliens seeking an H-1B visa from counting work experience during periods
that the alien was not authorized to work in the United States. During the 104th
Congress, similar language was in H.R. 2202 as reported.