Democrats seek major H-1B, green card reform

New bill would gives green card to science, advanced-degree tech grads and people who create businesses

WASHINGTON - Silicon Valley's U.S. Rep. Zoe Lofgren has proposed a sweeping reform of the H-1B visa and green card in a new bill released Tuesday.

The bill, which will likely be the benchmark Democratic proposal in Congress on the tech visa reform, makes green cards available to students who earn advanced degrees at certain schools.

It also makes a green card available to foreign entrepreneurs who create new businesses, while seemingly discouraging use of the H-1B visa by offshore firms, in particular.

In a time of high unemployment, this bill seeks to frame visa reform as a job creation issue. The legislation's very name underscores this message, the Immigration Driving Entrepreneurship in America (IDEA).

"More than 52% of Silicon Valley startups were founded or co-founded by immigrants, and immigrant-founded companies produced $52 billion in sales and employed 450,000 workers in 2005," Lofgren said in a statement. "Immigration has historically made our economy stronger. My bill embraces that history and encourages the world's thinkers and doers to join us."

President Barack Obama has made tech visa reform a priority , but may have left the details to Congress.

Lofgren's bill includes provisions that may make it harder for some firms to use the H-1B visa.

The H-1B visa is granted for three years and then is routinely extended for another three years. But this bill eliminates the three-year extension for "exclusively temporary workers," a move that may hit offshore IT services providers that rely heavily on the H-1B visa.

Lofgren has 13 Democratic co-sponsors, including George Miller, also from California, who is chairman of the House Democrat Policy Committee and the ranking Democrat on the House Education and Labor Committee. Another sponsor is Luis Gutierrez of Illinois, who is chair of the Congressional Hispanic Caucus Immigration Task Force, and one of the leaders on comprehensive immigration reform.

Supporters of broader immigration reform have previously opposed a piecemeal approach on visa reform issues. This bill, however, has some Dream Act-like provisions that provide permanent residency to some students.

But there are no Republican co-sponsors on the bill, which means it may have trouble moving forward.

Lofgren "is working to secure bipartisan support, and she's confident she can," said her spokesman, Pedro Ribeiro.

Lofgren also serves on the U.S. House Judiciary Committee, which is chaired U.S. Rep. Lamar Smith (R-Texas), who has voiced support for doubling the H-1B cap. Smith has not introduced legislation to accomplish this yet.

But Smith wants to make the E-Verify system, an electronic system for checking an employee's credentials, mandatory, and it is possible that he could include some visa reforms in this proposal as well.

The new category for advance degree STEM graduates seeks to limit the eligible schools to those classified by the National Science Foundation as a research institution "or as otherwise excelling in STEM instruction."

The green card-seeking student will also need a job offer in a field related to the graduate's degree and with wages that meet or exceed the prevailing wage of the particular occupation.

The "start-up business and job creation visa," provides "conditional green cards" for entrepreneurs that can show sponsorship by a venture capital company, angel investor or qualified employer and an investment of at least $500,000.

The conditional aspect of the visa can be removed after two years after showing that the business has created full-time jobs for at least three U.S. workers, has raised $1 million in additional capital investments, or has created a new commercial enterprise with at least $1 million in revenue.

The bill will increase the availability of green cards in a number of ways, particularly by exempting spouses and minor children from counting against the 140,000 numerical limits on employment-based green cards. Less than half of that number is actually available to workers because most are used for spouses and children of the workers, according to details of the bill provided by Lofgren's office.

The bill also allows "certain undocumented immigrants" who qualify for start-up entrepreneur visas and advance degree STEM visas "to obtain such visas if they were present in the U.S. on the date of enactment and have been continuously present since that date."

The bill also permits "certain undocumented students who are enrolled in a full course of study at an accredited public or non-profit U.S. institution of higher education to apply for temporary student visas if they were present in the U.S. on the date of enactment, have been continuously present since that date, and initially entered the U.S. at 15 years of age or younger."

The bill creates a new $2,000 fee for employers who file employment based green card petitions. The money will be used to fund STEM education, 60% of which will be used for scholarships. Most of the remainder will be used for education and job training, with 3% set aside for administration and enforcement.

On wages, Lofgren's bill appears to raise the salaries for some H-1B workers by eliminating the lowest level of the prevailing wage scale and creating three levels instead of four. It extends the prevailing wage requirement to L-1 workers if they are on the job longer than 18 months over a three-year period.

The bill also ranks the H-1B applications differently. If the H-1B visa cap is exceeded, the applications that offer the highest wage levels are considered first.

The proposal also prohibits displacement of U.S. workers, including by third party employers, which would likely include contract shops and offshore firms.

Lofgren's legislation would also change one of the most often criticized problems with the H-1B visa, and that's the ability of H-1B employers to hire visa workers without first recruiting U.S workers. The recruiting requirement, however, is applied to green card workers under current law, which is something employers try to work around.

This bill moves the recruitment requirement "from the back end to the front end of the H-1B process." The law includes exceptions, such as for employers who pay wages that meet or exceed the mean wage.

The bill also removes fashion models from the H-1B program, and puts them in the "P" visa program.

Patrick Thibodeau covers SaaS 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 © 2011 IDG Communications, Inc.

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