Bills Introduced in House and Senate to Facilitate Access to Highly-Skilled Workers
04/12/2007
Recently, two senators and a member of the House of Representatives each introduced a bill that would enhance U.S. employers' ability to recruit and retain talent from around the world. Specifically, the legislative proposals would increase the numerical limit for H-1B visas and/or employment-based immigrant visas.
SKIL Act
On April 10, 2007, Senator John Cornyn of Texas, the ranking Republican on the Senate Immigration Subcommittee, re-introduced the Securing Knowledge, Innovation, and Leadership Act of 2007 (SKIL Act). If enacted, the SKIL Act would bring much needed relief to the nonimmigrant and immigrant visa shortage, the effects of which American businesses are currently experiencing. Senator Cornyn and Representative John Shadegg (R-AZ) introduced a nearly identical bill last year by the same name in the Senate and House of Representatives, respectively. Prior to introducing SKIL Act last year, Senator Cornyn and Representative Shadegg worked closely with the immigrant and business communities, including the American Council on International Personnel and the Compete America Coalition, to identify and remove the obstacles U.S. employers face in recruiting and retaining the most qualified workers.
The Senate-passed comprehensive immigration reform bill last year also included the SKIL Act as an amendment. However, because the House and Senate did not meet in conference to reach consensus on immigration legislation, the Senate-passed bill did not become law.
The SKIL bill would make the following changes to current law:
H-1B Visa Cap Increases and Exemptions
§ Increase the annual H-1B numerical limit to 115,000 from the current 65,000. If the H-1B cap is reached in a given fiscal year, the numerical limitation for the following fiscal year would be increased by 20%.
§ Completely exempt from the H-1B cap those foreign nationals who have earned a master's or higher degree from a U.S. institution of higher learning, as well as those who have been awarded "medical specialty certification based on post-doctoral training and experience in the United States." The bill also would dedicate the annual pool of 20,000 advanced degree H-1B numbers to foreign nationals holding a master's or higher degree from a foreign institution; current law dedicates the advanced-degree pool to foreign nationals holding advanced degrees from U.S. institutions.
Employment-Based Immigrant Visa Quota Increases and Exemptions
§ Increase the annual limit on employment-based immigrant visas from 140,000 to 290,000, and would allow the recapture of unused visas from Fiscal Years 2001 to 2005.
§ Exempt from the numerical quota persons who: hold a master's or higher degree awarded by an accredited U.S. university; were awarded "medical specialty certification based on post-doctoral training and experience in the United States"; hold a master's or higher degree in a science, technology, engineering or mathematics (STEM) field from any country and who have worked in the U.S. for at least three years in a related field; are deemed to be aliens with extraordinary ability or outstanding professors or researchers, or are eligible for national interest waivers as defined in immigration law; are employed in an occupation that the Labor Department deems to be lacking in sufficient "able, willing, qualified and available" U.S. workers; or are spouses and minor children of the principal applicants.
§ For purposes of labor certification, apply the "equally qualified" standard to those who received a master's or higher degree from a U.S. institution, or who were awarded "medical specialty certification based on post-doctoral training and experience in the United States." Under current law, employers are generally required to consider all minimally qualified U.S. workers for a position even if they are less qualified than the foreign national for whom the employer is seeking certification. Under the "equally qualified" standard, only job applicants who are equally or better qualified than the foreign national listed on the labor certification would need to be considered.
Relaxed Restrictions on Recruitment of U.S.-Educated Talent
§ Extend optional practical training from 12 to 24 months.
§ Restructure the F student visa category, limiting the F-1 subcategory to students studying in a STEM field at institutions of higher learning and creating new F subcategories for other types of students. The bill would also remove the bar on immigrant intent for students in the restructured F-1 category.
Streamlined Visa and Labor Certification Process
§ Allow L-visa holders to extend the visa beyond the period of authorized stay if there is a pending adjustment application, similar to the current provisions relating to post-sixth year H-1B extensions.
§ Allow employment-based first, second and third preference foreign nationals to apply for adjustment of status despite the fact that no immigrant visa is immediately available, upon payment of a $500 fee. Note that the application for adjustment would not be approved until an immigrant visa became available.
§ Permit domestic visa revalidation of E, H, I, L, O and P nonimmigrant visas, meaning that foreign nationals working in the U.S. in these categories would not need to leave the country to renew their visas.
§ Require the Labor Department to process in 180 days of enactment all backlogged applications filed prior to the implementation of the PERM system.
§ Require the Labor Department to respond to prevailing wage determination requests (rather than State Workforce Agencies), within 20 days from the date on which the request was received.
§ Require the Labor Department to establish a process to make technical corrections to labor certifications without requiring employers to refile and possibly conduct additional recruitment.
§ Require DHS to establish, within 180 days of enactment, a pre-certification process for employers who file multiple visa petitions.
§ Allow for the premium processing of employment-based immigrant visa petitions and for administrative appeals of decisions regarding employment-based immigrant visa petitions, upon payment of an additional fee.
High-Tech Worker Relief Act
On April 11, 2007, Senator Chuck Hagel, Republican from Nebraska, introduced the High-Tech Worker Relief Act, which is aimed at providing short term relief for U.S. employers who cannot recruit or retain needed talent to stay competitive because of the current visa shortage. If enacted, Senator Hagel's bill would:
§ Raise the H-1B cap for fiscal year 2007 from 65,000 to 115,000, and for fiscal year 2008 from 65,000 to 195,000, allowing the quota to revert to 65,000 by fiscal year 2009 if no further legislation passes.
§ Exempt foreign students who earn masters degrees or above in the United States from the H-1B visa numerical limit.
§ Exempt STEM advanced degree graduates who have 3 years of U.S. work experience as a non-immigrant from the numerical limit on employment-based immigrant visas, in addition to those who are deemed to have extraordinary ability, are outstanding professors and researchers, and whose presence is determined to be in the national interest of the United States.
§ Exempt spouses and minor children of the principal applicant from employment-based immigrant visa quotas.
§ Exempt foreign physicians from the immigrant visa quota if they agree to work full time for five years in an area with a shortage of health care professionals, or if they work for five years in a Department of Veterans Affairs health care facility.
Scholarship Donation for H-1B
Representative David Wu, Democrat from Oregon, introduced a bill on March 27, 2007 that would create an additional 65,000 H-1B visas for each fiscal year from 2008 through 2012. The beneficiary must possess a master's or higher degree, and only employers who donate to an institution of higher education in the United States the maximum amount authorized under the Pell Grant may petition for the additional visas.
Conclusion and Legislative Prospects
Generally, the expectation in Congress is that any immigration legislation will move as part of a comprehensive immigration bill. However, given the recent, unprecedented exhaustion of the entire H-1B quota for fiscal year 2008 on April 2, 2007, there has been some discussion about possible short term and limited relief, such as Senator Hagel's bill. Such short term relief would resolve the difficulty many U.S. employers face in retaining a viable workforce, but would not obviate the need for truly comprehensive reform.
Legislative action regarding comprehensive reform is expected to commence shortly. The President spoke several times in favor of comprehensive reform over the past several weeks. Moreover, the Senate has set aside the last two weeks of May to discuss comprehensive reform, and the House Immigration Subcommittee is set to hold a series of hearings prior to Memorial Day with legislative action anticipated for this summer. Whether the divisions that prevented a comprehensive bill from passing last year will be bridged this year remains uncertain.
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