American Competitiveness and Workforce Improvement Act
The American Competitiveness and Workforce Improvement Act (ACWIA) was an act passed by the government of the United States on October 21, 1998 (while Bill Clinton was President of the United States), pertaining to high-skilled immigration to the United States, particularly immigration through the H-1B visa, and helping improving the capabilities of the domestic workforce in the United States to reduce the need for foreign labor. History. According to a history of the law by Jung Hahm for "Cornell Law Review", the proximal impetus for the ACWIA was that, for the first time , the H-1B quota was oversubscribed in 1997. Whereas some interests aligned with employers in industries using H-1B workers wanted to increase or even eliminate the caps on number of visas, others, specifically a vocal minority in Congress, as well as labor unions and the White House, were opposed to such expansion due to concerns about the effect on native wages and employment opportunities. ACWIA was a compromise bill hashed out in the Fall of 1998 between these competing interest groups. One of the ideas considered and rejected during the process was that of imposing a requirement for all H-1Bs to  show that efforts had been made to recruit a native worker with the same qualifications. Senator Spencer Abraham critiqued this requirement by noting that the huge amount of time taken for labor certification (the corresponding recruitment requirement for permanent immigrants) did not make sense for temporary work. ACWIA was followed by the American Competitiveness in the 21st Century Act (AC21) passed in 2000, that significantly restructured the H-1B to allow for a lot more temporary workers without any official changes to the caps, while also giving a few more years' grace period before the cap would become binding again. Provisions . Section 411: Temporary increase in H-1B cap. The annual cap for H-1B visas is 65,000. Section 411 increased this annual cap to 115,000 for Fiscal Year 1999; 115,000 in Fiscal Year 2000; and 107,500 in Fiscal Year 2001. The cap would return to 65,000 starting with Fiscal Year 2002. Section 412: Protection Against Displacement of United States Workers In Case of H-1B Dependent Employers. This section introduced the concept of H-1B-dependent employers, defined as employers who crossed a particular threshold in terms of both the absolute number and proportion of their workforce on H-1Bs. Both H-1B-dependent employers and  employers who had been found to commit a willful misrepresentation of material fact in a recent application were required to submit additional attestations in their Labor Condition Applications. These attestations continue to be required as of 2015. Section 413(a): Changes to Enforcement and Penalties. Historically, one of the criticisms of the H-1B regime had been that, even though applicants were required to make particular attestations in their Labor Condition Applications, there were very few penalties for those who lied or misrepresented facts in their attestations. ACWIA sought to correct their perceived problem by laying out explicit penalties, in addition to  the extra attestations required by Section 412. Below are the various provisions of this section: Section 413(b): Arbitration for Disputes Involving the Qualification of U.S. Workers. Guidelines were set up 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. Note that not all employers were required to make such attestations. Rather, only those who were deemed to be H-1B-dependent or had committed willful violations of the law were required to attest  to good-faith efforts to recruit American workers. Section 414: New fees for scholarships and training. This section specified an additional $500 fee (over and above filing fees) for H-1B applicants, that would be used to fund scholarship and training programs, and to fund United States Department of Labor administration and enforcement activities for the program. The fee would be collected by the Attorney General at the time of filing an initial petition to grant a foreign national H-1B status, upon the first petition to extend the stay of an H-1B nonimmigrant, and upon a petition by a different  employer for concurrent or new employment. It is not required when filing for extensions of stay after the initial extension by the same employer, nor for amended petitions that do not request extension of stay. The employer was not allowed to recoup the fee from the alien worker through any means (such as a salary or benefit cut). Colleges, universities and non-profit research institutions would be exempt from this fee. Section 415: Hathaway Prevailing Wage Fix, Athletic Prevailing Wages. For institutions of higher education, related or affiliated nonprofit entities or nonprofit or governmental research organizations, the prevailing wage (for  both LCAs and Permanent Labor Certifications) shall only take into account employees at such institutions and organizations in the area of employment. The prevailing wage for professional athletes in professional sports leagues is that set forth in the league regulations. Both changes are effective as of the date of enactment. Reception. A paper by Jung Hahm in "Cornell Law Review" in 2000 reviewed the ACWIA as an attempt at balancing economic and labor interests, and proposed doing away with the caps entirely, instead moving all enforcement functions to the United States Department of Labor. A paper by Lindsay Lowell at  the Center for Comparative Immigration Studies in May 2000 attempted to estimate the population of H-1B temporary workers and how it was likely to change with the passage of ACWIA. A paper by Carl Lin in 2011 reviewed the effect of immigration policy changes for high-skilled immigration on employers and shareholders in the United States. The paper considered the Immigration Act of 1990, ACWIA, and the American Competitiveness in the 21st Century Act (of 2000). Lin's work was cited in "Bloomberg" by Charles Kenny. A paper by the Brookings Institution in 2013 proposed changes to the ACWIA to  better align H-1 visa fee revenues to local workforce needs.