Story: Comparison of S 1723 and 1878, 3/20/98

Comparison of H1B Bills:
Abraham vs. Kennedy/Feinstein

(March 30, 1998) The two "H1B bills" pending in the Senate Judiciary Committee are vastly different. The Abraham bill (S 1723) is designed to relieve the shortage of high tech professionals in the computer industry. The Kennedy/Feinstein bill (S 1878) creates a three year increase in the annual H1B visa limit, but decreases the length of these visas from six to three years, and creates a vast array of new Labor Department fees, red tape, and regulatory authority.

Related Pages

Complete Text of S 1723

Complete Text of S 1878

Both bills provide money for education or training. Under S 1723 that money would go only to full time students working on degrees in fields where high tech industry shortages exist: math, computer science, and engineering. Under S 1878 the money would not necessarily be targeted at computer industry shortages. It would create two new federal loan and grant programs, but leave the Department of Labor with broad discretion on how to administer them.

Relevant Sections of Title 8

§101(a)(15)(H)(i)(b) - H1B

§1184(g)(1) - The Annual Cap

§1184(g)(4) - Duration of H1B Visa

§1184(i) - Def. of Specialty Occup.

§1182(n) - Labor Condition Appl.

§1152 - Per Country Limit

Both bills deal with H1B visas. H1B visas derive their name from a definition found in the byzantine Immigration and Nationality Act at 8 USC §1101(a)(15)(H)(i)(b). Basically, H1B is a category of visa applicants who come "temporarily to the United States to perform services ... in a specialty occupation ... that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in that specialty."

The computer industry has increasingly come to rely on foreigners with H1B visas to fill positions which they cannot fill with American workers. Presently, the maximum number of H1B visas which can be issued in one year is 65,000. Until recently, this cap was not met. However, in 1997 was reached months before the end of the year.

The Abraham bill would increase the cap, starting with 1998, and maintain the increase permanently. S 1723 contains no specific number; rather, it sets out a complex formula that would likely result in an increase of about 25,000. S 1723 would leave untouched the six year duration of these visas.

The Kennedy/Feinstein bill would also increase the cap, but only for the years 1998, 1999, and 2000. It would be raised to 90,000 for three years, and then revert back to 65,000. Moreover, S 1878 would decrease the duration of H1B visas from six to three years, thus potentially causing a decrease in the the total number of persons present in this country under H1B visas.

Both bills provide money for education or training, but in vastly differently ways. Both also revise the process by which employers apply to the Department of Labor for H1B visas for alien workers, but in vastly different ways.

Summary Table: Comparison of H1B Bills
Topic	Abraham - S 1723	Kennedy/Feinstein - S 1878
Increase in H1B Cap	Complex formula for increasing the annual cap which would likely would increase it by about 25,000. (See, S 1723 §3(b).) This bill also creates a new H1C category out of H1B, with a cap of 10,000.	Increase the annual cap from 65,000 to 90,000. (See, S 1878, §3.)
Duration of H1B Cap Increase	Permanent.	Increase only applies to FY 1998, 1999, and 2000 - after that the cap reverts back to 65,000. (See, S 1878, §3.)
Duration of H1B Visas	Leave unchanged at 6 years.	Decrease from 6 to 3 years. (See, S 1878, §8.)
Education and Training	Authorize $50 Million to federal spending on scholarships for full time students pursuing an associate, baccalaureate, or post-graduate degree in mathematics, engineering, or computer science. (See, S 1723, §4.)	Create a $90 Million general education and training loan program. (See, S 1878, § 4(b).) Create a $10 Million grant program for entities. (See, S 1878, § 4(c).)

Money for Education or Training

Both bills would increase federal spending on education or training. The Abraham bill would authorize (but not appropriate) $50 Million for spending on scholarships, while the Kennedy/Feinstein bill would create a $100 Million fund to provide loans to individuals and grants to organizations. It would be funded by fees and fines from employers.

The Abraham bill scholarship provision is narrowly targeted. S 1723 §4 provides that: "Grants awarded under this section shall be used by the students for attendance on a full-time basis at an institution of higher education in a program of study leading to an associate, baccalaureate or graduate degree in mathematics, computer science, or engineering." It also allows for a portion to be awarded to low income students.

The Kennedy/Feinstein bill create a $90 Million fund for a loan program to be administered by the Department of Labor, which Sen. Kennedy oversees, as the Ranking Minority Member of the Senate Labor and Human Resources Committee. The criteria for this loan program is largely undefined by the bill. The program is not limited to people studying math, engineering, or computer science. Nor is it limited to students working towards college degrees. Nor is it restricted to full time students. Indeed, the bill poses no restriction that one be a "student" to qualify for a loan.

The Kennedy/Feinstein bill would also set up a $10 Million fund for a grant program, to funnel money to entities, including labor unions, non-profit organizations, and companies. This program too would be administered by the Department of Labor.

Labor Condition Application

Title 8 presently provides that an employer who wants to fill a position with an alien under H1B must file an application with the Department of Labor certifying that certain conditions have been met. (See, 8 USC 1182(n).) These conditions include such things as there being no strike or lockout affecting the position, payment of the prevailing wage for the position, notice to any collective bargaining representative, and making public information about the position. Both bills would amend this application process in significant ways.

S 1878 would change the Labor Condition Application by increasing the requirements placed on employers:

Employers must pay fees for each position they apply to fill with an H1B alien. These fees are limited to $250 or less until 2001, after which there is no limit.
Employers must certify that they have not laid off anyone, including contract workers, in the last six months, from a similar position.
The bases for, and amounts of, fines for violations are increased.

S 1878 would also expand the powers of the Department of Labor:

Increased investigatory and subpoena power.
Power to conduct "random audits" of employers.
Employers must offer employment "to any qualified United States worker" before applying under H1B, thus giving the Department of Labor some authority to review an employer's hiring decisions.
The Department of Labor can require other executive branch agencies to comply with this section.
Regulations promulgated by the Department of Labor regarding this section are binding upon other executive branch agencies.

S 1723 would also amend §1182(n).

It transfers several powers from the Department of Labor to the Department of Justice.
The Department of Labor's authority to conduct random inspections is limited to employers who have been found to have violated the application process.
It allows electronic posting of job positions.
The definition of "prevailing wage" is modified. (See, S 1723 § 5(e).)

Other Abraham Bill Provisions

The Abraham bill also relax the per country limitation on H1B visas. (See, S 1723 § 7.) This provision is not found in the Kennedy/Feinstein bill.

Conclusion

The Abraham bill is designed to alleviate the shortage of high tech computer industry workers, by increasing the number of foreigner high tech professionals who would be able to come to this country to fill these positions, easing the visa application process, and providing more college money to educate Americans in high tech fields.

The Kennedy/Feinstein bill would create a $100 Million fund for general education and training programs which are not specifically targeted at training workers for high tech computer positions. While it would increase the cap on H1B visas, the raise would be short lived. Moreover, it would be accompanied by cutting the length of H1B visas in half, make the application process more difficult, and subject employers to more fees, fines, audits, and regulation from a Department of Labor with vastly expanded powers in this area. It potentially could aggravate the shortage of high tech workers.