Rep. Lofgren Introduces Tech Visa Bill

(August 5, 1999) Rep. Zoe Lofgren introduced a bill in the House on August 3 that is designed to relieve the shortage of skilled professionals for high-tech companies. The "BRAIN Act" would create a new visa category for students who obtain a degree in math, science, engineering, or computer science from an American University and have a binding offer for a job paying at least $60,000 per year.

Rep. Zoe Lofgren (D-CA) (web site | bio) stated that she introduced HR 2687 IH, the Bringing Resources from Academia to the Industry of Our Nation Act. (BRAIN Act), "to ensure the continued competitiveness of the American high-technology industry."

Unlike legislation that was passed last year, HR 2687 IH would not change the law pertaining to H1B visas. Rather, it would establish a new 5 year pilot program to issue 5 year work visas to certain aliens already in the U.S. with an F or J student visa. To be eligible, the alien must have obtained a post-secondary degree in math, science, engineering, or computer science from an American university in the last 90 days, and have a binding job offer that pays at least $60,000.

Rep. Lofgren

"It has never made sense to me that, after allowing foreign students to study at our fine American universities, we force some of the best and brightest minds in the world to leave America and relocate to other countries to compete against us," Rep. Lofgren said. "The BRAIN Act would help plug the brain drain from America."

"I remain committed to correcting deficiencies in our education system. In fact, it is the issue closest to my heart as a mother and as a lawmaker. But as we work to restore excellence to all levels of the American education system, we should not force those who have achieved academic and scientific excellence to relocate to foreign nations to compete with America," Lofgren said.

The Lofgren bill would create a new class of nonimmigrant visa -- the T visa. The Immigration and Nationality Act (found at Title 8, Chapter 12 of the U.S. Code) lists and defines the types of nonimmigrant aliens who are granted visas. Section 1101(a)(15) of the Immigration and Nationality Act lists these categories with a letter identifying each category. "A" covers foreign diplomats; "B" covers foreign journalists; and so forth, through the letter "S". "F" is for full time students. "H" is a multipurpose category including various types of skilled workers. (H)(i)(b) is the subcategory now used for many high-tech workers.

While assigning the letter T is merely appropriate statutory nomenclature for the next visa category, Rep. Lofgren pointed out that is could also be understood as the "Technology visa."

HR 2687 IH is a long and technical bill. However, the highlights of the program are as follows. It would be temporary: five years. Any T visas would last five years. Unlike the H1B visas, there would be no cap on the total number that could be issued each year.

To receive a T visa the individual would have to meet several criteria. The alien would have to already have either an F or J visa. The alien would have to have received a degree "from an institution of higher education ... inside the United States". The degree would have to have been received in last 90 days. The degree would have to be in mathematics, science, engineering, or computer science. And, the alien would have to have a job offer paying at least $60,000 per year. The statute requires "obtaining a contractual obligation on the part of the employer" for such employment.

The Lofgren bill would also assess a fee of either $500 or $1000 on each company filing for a T visa. The funds collected would go into a "High Tech Education Fund."

"The BRAIN Act education trust fund component addresses the heart of a long-term problem, while the T visa component prevents the unwilling expulsion to foreign lands of those who have achieved academic excellence in science and technology," said Rep. Lofgren. "Why should we force these bright young people to leave America to compete against us from abroad? And why not invest resources in American children to increase the numbers of those achieving excellence in science, math, and engineering?"

The Lofgren bill also includes provisions pertaining to enforcement. This includes disclosure requirements for companies with employees who have T visas. Also, companies are barred from retaliating against employees who report information regarding a failure to comply with the law, or a misrepresentation made in connection a T visa application. Finally, T visas may be revoked, and companies may be fined up to $10,000, for violation of the law.

Last week, Sen. Phil Gramm (D-TX) introduced a bill in the Senate that is also designed to alleviate the shortage of high-tech workers. His bill, S 1440 IS, would increase the annual cap on H1B visas to 200,000 for the years 2000, 2001, and 2002. It would also eliminate the reduction in Social Security benefits now imposed on individuals aged 65 through 69 who continue to work and whose earnings exceed $15,500 annually.

In addition, the Gramm bill contains a provision that is similar to the Lofgren proposal. S 1440 IS provides that the annual numerical limitations on H1B visas would not include two types of H1B visas: (1) H1B visas issued to anyone who "has attained a master's degree or higher (or its equivalent) in a specialty related to the intended employment and receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000", or (2) "has attained a bachelor's degree or higher degree (or its equivalent) and is employed (or has received an offer of employment) at an institution of higher education".

Rep. Lofgren represents Silicon Valley. Many of the cosponsors of her bill also represent California. Sen. Gramm's state of Texas is home to many high-tech companies, such as Texas Instruments and Dallas Semiconductor, which also face a shortage of high-tech workers.

The original cosponsors of the HR 2687 bill include John Conyers (D-MI), Cal Dooley (D-CA), Anna Eshoo (D-CA), Nancy Pelosi (D-CA), Loretta Sanchez (D-CA), Ellen Tauscher (D-CA), Lynn Woolsey (D-CA), Bob Matsui (D-CA), Mike Thompson (D-CA), Sheila Jackson-Lee (D-TX), Howard Berman (D-CA), Marty Meehan (D-MA), and Ron Kind (D-WI).

Rep. Lofgren also told Tech Law Journal that Rep. Martin Frost (D-TX) is a cosponsor. She also said that she welcomes Republican cosponsors.

Rep. Lofgren is a member of the House Judiciary Committee, and its Immigration Subcommittee, which have jurisdiction over bills on this subject. The Immigration Subcommittee is scheduled to hold a hearing on H1B visa fraud on Thursday, August 5.