Summary of H.R. Bill 3736 to Increase H1B Cap
Posted Oct 18, 1998

The Law Office of Sheela Murthy is pleased to report that the even though last Thursday, October 15, 1998, there were rumors that H.R. Bill 3736 had met its demise because of strong opposition from Senator Harkin, the Bill is still active and is part of the Omnibus Appropriations Bill that Congress must pass before it adjourns. The Bill is likely to be voted upon possibly on Monday, October 19, 1998 or Tuesday, October 20, 1998. Therefore, it is not too late to contact your Senators by eMail, telephone, or letters to voice your support for this Bill.

The Congressional switchboard number is 202-224-3121 or 800-504-0031. Also contact White House officials Gene Sperling of the National Economic Council, 202-456-2620, and Ron Klain, the Vice President's Chief of Staff, 202-456-6605.

The key features of this bill include the following provisions which had been summarized in an earlier Immigration Law Bulletin of The Law Office of Sheela Murthy:

- Increase in number of visas, beginning in fiscal year 1999. Unlike the numbers mentioned earlier, this Bill proposes 115,000 for fiscal year 1999, 115,000 for fiscal year 2000 and 107,500 for fiscal year 2001, with the numbers reverting back to 65,000 in fiscal year 2002.

- New fee on H1B employers of $500 for each H1B worker hired and $500 for each H1B renewal, with the projected $75 million funds collected primarily going towards training programs and scholarships for U.S. workers in mathematics, computer science and engineering. The fee increase will become effective on December 1, 1998. This fee is in addition to the $110 filing fees for H1B Petitions effective from October 13, 1998.

- Additional attestations for so-called H1B dependent employers on the Labor Condition Application. Such employers should attest that they have taken good faith steps, using industry-wide standards to recruit and are paying prevailing wages to H1B workers. They are also required to offer the position to any U.S. worker who applies for the position and who is equally or better qualified than the H1B employee.

H1B Dependent Companies: An employer is defined as H1B dependent in the legislation and subject to the new recruitment and layoff attestations if its workforce consists of 15% or more H1B visa holders. There is a provision to help smaller employers and startups by defining as "nondependent" an employer with 25 employees that has no more than 7 H1Bs and an employer with 26 to 50 employees that has no more than 12 H1Bs. Employers who are found to have committed willful violations in the prior 5 years will be subject to these new attestations.

These recruitment attestations are not required if the H1B nonimmigrant would otherwise qualify as an EB1 immigrant (extraordinary ability, outstanding professor or researcher, or multinational manager or executive) or is considered exempt because the H1B worker has at least a Master's Degree or higher and earns over $60,000 per year, which includes cash bonuses or similar compensation.

- Enhanced enforcement procedures and penalties with fines from $1000 and up to $35,000 with debarment from one year and up to three years.

- The omnibus bill adds a new requirement that employers must pay H1B the required wage for the full hours specified on the H1B visa petition even if the beneficiary is not working due to a decision by the employer. Employers will be required to pay the H1B employee the required wage beginning no later than 30 days after the date the H1B employee is admitted to the United States pursuant to the H1B petition, or 60 days after the nonimmigrant becomes eligible to work for the employer (if the H1B candidate is already in the United States) but does not include those circumstances where the H1B employee cannot or does not work voluntarily or is unable to work. Violation of this provision will be considered a violation of the wage requirement and subject to the penalties for wage related violations.

- A non H1B provision would allow payment of honoraria and associated incidental expenses to B-1 or B-2 visitors for "usual academic activity" lasting not longer than 9 days at a single academic institution, if offered by an institution of higher education or affiliated nonprofit entity or a nonprofit or governmental research organization. Foreign nationals cannot accept honoraria from more than five institutions or organizations within a six-month period. This provision will be effective on the date of enactment.

While some companies will be concerned with the additional requirements on H1B dependent employers, the government believes that this Bill contains protections for both U.S. workers and high tech companies. The Law Office of Sheela Murthy will post additional information and updates if the Bill is approved by both Houses and signed by the President.