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Even though Watt Amendment failed by a vote of 177 to 242, the US House of Representatives passed a bill to raise the H-1B cap, H.R. 3736, by a vote of 288 to 133, on Spetember 24, 1998. No veto is expected because the White House worked out a compromise with Senator Spencer Abraham (R-MI), Chairman of the Senate Immigration Subcommittee. The compromise makes quite minor changes to the original H.R. 3736. The original bill proposed H-1B incerased cap from 65,000 to 85,000 in FY 98, 95,000 in FY 99, 105,000 in FY 2000 115,000 in FY 2001 and 2002, then likely returns to 65,000. The "compromise" is an increase to 115,000 for FY 1999 and 2000 and then drop the number to 107,500 in Fiscal Year 2001, and later back to 65,000 unless Congress chooses to extend the lifting of the cap. New notice to H-1B dependent employers on LCA informing them that if they place a nonimmigrant at another employer's work site and the other employer displaces a U.S. worker during the period described in the attestation, they are still liable and may be subject to penalties. Exempts i.e. those who may stay slave traders No attestations on H-1B dependent employers are required with respect to an H-1B nonimmigrant who holds a master's or higher degree or receives annual wages (including other compensation) of $60,000 or more. It means, an employer could petition for an employment of a foreigner holding master's degree or higher and that the firm would likely pay $60,000 or more, but in fact there is a loophole to enforce this requirement. Moreoevr, employers with 50 or less employers are simply exempted. The compromise bill would change it a bit. The exemption for small companies is a little more complicated than reported earlier. Companies with fewer than 25 employees that have fewer than 7 H-1Bs are exempt. Companies with 26 to 50 employees that have no more than 12 H-1B employees are also exempt. Recruitment attestation is not required if the H-1B nonimmigrant would otherwise qualify as an EB-1 nonimmigrant (extraordinary ability, outstanding professor or researcher, or multinational manager or executive). "Displace" for purposes of the layoff attestation is defined as the laying off of a U.S. worker from a job that is essentially the equivalent of the job for which the H-1B nonimmigrant is sought. A job is not "essentially equivalent" unless it has essentially has essentially the same responsibilities, was held by a U.S. worker with substantially equivalent qualifications and experience, and is located in the same area of intended employment. "Lay off" is defined as a worker's loss of employment other than through discharge for inadequate performance, violation of workplace rules, cause, voluntary departure or retirement, or the expiration of a grant or contract (other than a temporary employment contract entered into in order to evade the layoff attestation). It does not include any situation in which the worker is offered similar employment with the same employer (or in the case of third-party placement, with the other employer), at equivalent or higher compensation and benefits, regardless of whether such offer is accepted. U.S. worker means a citizen or national of the United States, a lawful permanent resident, a lawful refugee, or a lawful asylee. The Joke of Enforcement and Penalties A $1,000 fine and not less than 3 years debarment for failure to meet the no strike or lockout or layoff attestations (if required), a substantial failure to meet the working conditions, posting or recruitment attestations, or misrepresentation of a material fact in an application. A bit higher $5,000 fine and not less than 3 year debarment for any said "willful" failure to meet any attestation condition, or willful misrepresentation of a material fact, or violation of the Whistle Blower clause. A highly theoretical $35,000 fine and no less than 3 year debarment would be imposed for said "willful" failure or misrepresentation of a material fact in the course of which an employer displaced a U.S. worker within the 90 days before and 90 days after the filing of a visa petition based on the application. Whistle Blower Protection -- HA! HA! HA! An employer may not intimidate, threaten, restrain, coerce, blacklist, discharge or otherwise discriminate against and employee (including a former employee or applicant for employment) because such individual has disclosed information to the employer or anyone else regarding a potential violation, or for cooperating in an investigation or proceeding. The Attorney General and Secretary of Labor will devise a process by which H-1B nonimmigrants who file complaints may be allowed to remain and work in the U.S. for another employer for the remainder of their authorized admission period. Disputes Involving the Qualification of U.S. Workers The INS will establish a process for the receipt and review of complaints regarding an employer's failure to offer a job opportunity to a qualified U.S. worker (if required to so attest) or misrepresentation of material facts with regard to such condition. The INS will determine from the complaint whether there is reasonable cause to believe that a violation occurred. If they suspect there was aviolation, the Attorney General will initiate a binding arbitration proceeding with an arbitrator from the roster of the Federal Mediation and Conciliation Service, with proceedings under the rules of that Service. The INS will pay the fees for the proceedings. Once it was the responsibility of the Department of Labor but they have ever failed to fulfill this duty. Moreover, the INS Commissioner would have the power to review, reverse or modify the findings of an arbitrator. A Federal Appeals Court might have only reviewed the review of the INS Commissioner and not any arbitrator's findings. An employer who is found to have committed a willful violation may be subject to random DOL investigations for a period of up to 5 years from the date of such finding. The undersigned believes that nothing would change, like all the previous laws had never been enforced. New! New! New! LCA is to be received by INS . . . oops, but it remains with the slugish Secretary of Labor! Initially it was propose that the LCA will be filed with the Attorney General at the same time as the H-1B petition is filed. The Attorney General will be responsible for reviewing the application for completeness, and forwarding the application to the Labor Department. This section will take effect not later than 30 days after the date that final regulations are published, which must be no later than March 1, 1999. Regardless, the Compromise bill would scrap this reasonable provision and the Department of Labor will still retain responsibility as in the current law. Nothing is new under our sun. . . I may sarcastically laugh, because I have temporarily "lost" my case, but you, Americans, should cry and protest. You are going to lose in big! -Doronps. To read the complete text of the compromise bill, see http://www.shusterman.com/hr3736f.html. To read a section-by-section summary of the bill, see http://www.shusterman.com/hr3736s.html. For a blow-by-blow account of the process of the H-1B legislation since May 14, 1998, and for future updates, bookmark the following page: http://www.shusterman.com/h1bflash.html |
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Copyleft1997-2000 Doron A. Tal - anyhow my rights were lost... ... דורון א. טל - זכויותי ממילא אבודות