Senators seek H-1B cap that starts at 115,000 and rises

A market based H-1B cap with a minimum of 115,000

WASHINGTON -- A bipartisan group of Senators is planning to introduce a bill that not only hikes the H-1B cap, but allows it to rise automatically with demand to a maximum of 300,000 visas annually.

This 20-page bill, called the Immigration Innovation Act of 2013 or the "I-Squared Act of 2013," is being developed by Sens. Orrin Hatch (R-Utah), Amy Klobuchar (D-Minn.), Marco Rubio (R-Fla.), and Chris Coons (D-Del.).

Presently, the U.S. has an H-1B visa cap of 65,000. There are another 20,000 H-1B visas set aside for advanced degree gradates of U.S. universities, for 85,000 in total.

Under the new bill, the base H-1B cap would increase from 65,000 to 115,000. But the cap would be allowed to rise automatically with demand, according to a draft of the legislation.

The bill has not been introduced, but that may happen next week. The Hill last night was the first to report on the move.

Once the H-1B visa cap reaches 115,000, the automatic increases takes over. The cap may increase by 20,000 visas if the cap is reached within 45 days of the start of the annual application period, April 1. That increase will also carry over to the following fiscal year.

If the cap isn't exhausted for 60 days, it would rise by 15,000 visas. If it takes most of the year to reach the cap, it will go up 5,000.

The upper most cap limit that the cap can creep up to is 300,000.

This bill, which also eliminates per-country caps, exempts from the H-1B cap advanced degree science, technology, engineering and math (STEM) graduates of U.S. universities.

This escalation formula also allows for shrinking the cap if visa demand falls, though it won't fall below the 115,000 threshold.

Employment-based green card quotas won't apply to foreign students earning a master's or doctorate in STEM fields at a U.S. university. The bill also says that those quotas will not apply to spouses and minor children.

The provisions of this bill appear to represent a tech industry wish list, and it faces numerous obstacles. There were numerous bills introduced in the last session of Congress seeking tech immigration reforms. But lawmakers avoided taking on the H-1B visa.

This particular bill represents a turnabout.

Tech immigration legislation has been stymied for many reasons, mostly due to lawmakers who favor comprehensive immigration reform over a series of bills that take up the major issues piecemeal.

The H-1B provisions of in this draft proposal are almost certain to face opposition from Sens. Dick Durbin (D-Ill.), and Chuck Grassley (R-Iowa), both of whom are on the Senate immigration subcommittee with Hatch, where immigration bills are vetted.

The H-1B cap increase provisions will be very controversial for many reasons. The visa is seen as a tool by offshore companies to replace U.S. workers. Some critics see it as instrumental in age discrimination with an impact on wages. On the other side are U.S. tech companies, such as Microsoft and Google, which argue that H-1B visa is essential to hiring workers.

Grassley and Durbin have been critical of the H-1B program and want restrictions on visa use.

Sen. Chuck Schumer (D-NY), who heads the immigration subcommittee, has been leading a separate effort to develop a comprehensive immigration bill that may include high-tech provisions of its own. The Immigration Innovation Act of 2013 could also be used as a bargaining chip in pursuit of a comprehensive bill, but that prospect remains uncertain.

Patrick Thibodeau covers cloud computing and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed. His e-mail address is

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Copyright © 2013 IDG Communications, Inc.

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