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Statement of Congressman Lamar Smith, Chairman of the House Immigration Subcommittee On the introduction of a new bill (H.R.4227) to increase the number of H-1B visas
April 11, 2000 -- A month ago, my colleagues, Bob Goodlatte, Chris Cannon, Tom Campbell, and I introduced the Technology Worker Temporary Relief Act that increases the number of skilled temporary foreign H-1b workers by 45,000. Today there is still no objective, credible study that documents a shortage of American high-tech workers. The Department of Commerce says it does not know if there is a shortage. The study that Congress commissioned by the National Science Foundation is not scheduled to be completed until after we adjourn this year. In the private sector, two substantive non-profit studies concluded that it is unclear whether there is a shortage.

What is new is that two weeks ago the INS informed us that demand for these visas is running 50,000 ahead of last year. In addition, the INS reported that the number of visas the INS approved last year above what the law allowed was more than 21,000.

So, there is obviously a significant growth in demand for foreign high-tech workers. Such demand can indicate any or none of the following: An actual shortage, a spot shortage, a preference for cheap labor or replacement workers, or something else. Given the importance of the high-tech industry to our economy, I think we should give the industry the benefit of the doubt and accommodate the current level of demand. Since demand is currently the only information Congress has on this issue. Demand drives the process.

The new Temporary Worker Temporary Relief Act I am introducing today will set no limits on the number of skilled temporary foreign workers we admit during the next three years. Let the market determine how many foreign skilled workers we need rather than have Congress set limits based on arbitrary numbers.

This bill responds generously to the immediate temporary needs of the high-tech industry and also includes provisions that are good for American workers.

It will require companies applying for these visas to show they have increased the number of American employees and increased compensation to American employees. This bill requires employers to file public reports on skilled temporary foreign workers they have hired, what jobs they've been assigned to do, and the wages they are paid. Since these are foreign workers who are filling what could otherwise be Americans' jobs, it is appropriate the American public knows what the industry is doing. This legislation also sets a floor on wages for these workers-- $40,000 per year. The industry has said that it uses these
workers to fill critical positions in their workforce. This wage is a good starting point for any high-tech professional.

This bill also requires full implementation of the 1998 American Competitiveness and Workforce Improvement Act before the additional visas are available in 2001 and 2002. Strong anti-fraud measures are necessary to address known abuses. This bill requires skilled temporary foreign workers to be full-time employees, requires employers with assets of less than $250,000 to document what they do, eliminates the substitution of work experience for a degree,
and provides for checks of foreign educational institutions that award degrees to these workers. These common sense provisions that benefit American workers and reduce fraud are essential to any workable H-1b visa bill. Finally, this legislation helps put America's future workforce into context.

Ninety percent of all future jobs will require more than a high school education. Tragically, 35 percent of legal immigrants, more than 300,000 annually, lack this essential qualification. If we have learned anything from the debate over the demand for more skilled temporary foreign workers, it is that our current legal immigration system is failing us. It provides large numbers of workers with no skills but does not provide the high-tech workers we do need. Every day that Congress debates temporary foreign workers is a warning that we need a legal immigration system that better serves America's interests.

Contact: Allen Kay/Chairman Lamar Smith
202-225-4236 (O)
202-225-2659 (cell)
301-990-3749 (H)

The New Technology Worker Temporary Relief Act

Additional Visas

* fy 2000, 2001, 2002 No cap on the number of visas available

Conditions

In 2001-02, additional requirements to be met for those visas above current law are as follows:

* The petitioning company must demonstrate that it has:

a) increased its number of American employees over the last year (disregarding spun-off divisions),
b) increased the total compensation to American employees over the last year, and
c) increased the average compensation to American employees over the last year.

The high-tech companies that are calling for more H-1Bs visas are growing at a fast rate, hiring all the Americans they can find, and sharing their extraordinary profits with their employees. These companies need additional H-1B aliens in order to keep up these growth rates and to continue to provide new opportunities for American workers. The H-1B quota increase is intended to benefit these companies.

However, companies that are laying off large numbers of American employees or slashing their salaries should not have the opportunity to use an H-1B visa worker.

* Final regulations implementing all provisions of the American Competitiveness and Workforce Improvement Act of 1998 must be in effect.

The 1998 compromise H-1B legislation (the American Competitiveness and Workforce Improvement Act) increased the annual H1B cap and at the same time added safeguards for American workers. While the extra visas became immediately available, the substantive protections have never been implemented because the Administration has never issued final regulations. Thus, the 1998 compromise has not been carried out.

Additional Requirements for All H-1B Visas

* H-1B visas will only be available to aliens who will be paid over $40,000 a year (unless working at universities).

High-tech companies need H-1B visas to employ "the best and the brightest" aliens.

* Employers shall provide to the Labor Department in electronic form specified information about each H-1B alien employed (including name,
country of origin, academic degree, job title, start date and salary level). The Labor Department shall make such data available on the Internet.

The H-1B program will become completely transparent when information on the use of the program becomes widely available to Americans. This
will increase the confidence of the American people in the program. It will also provide information about the demand for technology worker visas.

Fraud Prevention

* H-1B aliens must work full time (other than those employed at universities).

Employers currently can petition for part- time workers. Companies doing this may be marginal operations that have trouble meeting the requirements of the H-1B program.

* Companies filing H-1B petitions that do not have assets of $250,000 must provide documentation of their business activity such as a copy of a
lease, business contracts, and tax ID numbers.

Under current law, there are no minimum requirements for an employer to file an H-1B petition. H-1B petitions are sometimes filed by questionable companies that have few, if any, assets. These may be "front" companies set up solely to apply for H-1B visas to circumvent the family reunification process or are marginal companies whose level of business activity may be insufficient to pay the required salary to an H-1B alien.

* The provision of current law that allows aliens to substitute work experience for a degree is eliminated.

Current provisions encourage overstated and specious claims as to work experience. Assuring that H-1B professionals have college degrees will assure that only well-qualified true professionals will come here to work. The alien of extraordinary skills who does not have a college education can come on an "O" temporary visa.

* When an alien applies for an H-1B visa based on a degree from an educational institution outside of the United States, it must be verified by a consular office or its designee located in the country where the degree was granted.

The H-1B program is vulnerable to fraudulent claims of foreign degrees -- counterfeit diplomas from real and fictitious foreign universities and diplomas from institutions not meeting the standards of an American college education. The individuals most able to verify foreign degrees are Department of State officers working in the countries where the diplomas are supposedly or they can consult private credentialing services working for the State Department.

* An H-1B petition must be filed on behalf of any alien who is coming to the United States to work in a specialty occupation regardless of the source of the alien's pay.

Current Department of State regulations for "B" visitor visas permit the issuance of visas to certain aliens "normally classifiable as H-1B." Employers who pay aliens from a source outside the U.S. can use this provision to avoid labor attestations and other requirements of the H-1B program designed to protect U.S. workers.

* Employers must submit to the Department of Labor each year the "W-2" wage withholding statements for their H-1B employees.

This provision will help enforce current provisions of the law.

* H-1B petitioners must pay a special fee ($100). The funds will be earmarked for H-1B anti-fraud work and split evenly between the INS and
the State Department.

The anti-fraud efforts of the Department of State and INS with respect to the H-1B program often falter for lack of resources. The anti-fraud fee would provide more funding for field investigations and joint inter-agency anti-fraud projects. It would also provide funding to pay for deportations of aliens who were admitted to the country based on a fraudulent H-1B application.

State Department Tabulation of H-1Bs

* The Department of State would be responsible for counting H-1B visas.

The INS has consistently had problems tabulating usage of the H-1B program. The Department of State, conversely, has been keeping records for the various numerically limited immigrant visa categories for more than 40 years without problems.

Extension of Expiring Provisions

Provisions of the American Competitiveness and Workforce Improvement Act of 1998 that expire after fy 2001 will be extended through
fy 2002.

If we are extending additional H-1B numbers through 2002, we should also extend the expiring worker protection provisions from the American Competitiveness and Workforce Improvement Act.

Standards for Issuance of H-1B Visas

Aliens seeking H-1B visas to teach American students must demonstrate proficiency in English.

We should not subject students in college to teaching assistants who cannot speak English well.



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