Bi-Partisan Group of Senators’ Comprehensive Immigration Reform Bill Arrives in the Senate

In the most sweeping immigration bill in 60 years, a bipartisan group of U.S. Senators has introduced legislation to revamp the U.S. immigration system. The Senate bill S.744 comprehensively addresses border security, provides a path to provisional immigrant status for those foreign nationals already here, creates a new guest worker program, revises nonimmigrant visa categories, and establishes a merit basis for future U.S. immigration to replace an existing immigration “Diversity Visa Program.” The bill includes other changes as well.

On the nonimmigrant visa side, S.744 both provides for additional nonimmigrant visa categories and additional H-1B visa numbers.  It also includes additional restrictions on H-1B and L-1 visa classifications further burdening employers who need foreign talent with additional fees and additional requirements to thwart fraud.  As of this writing, the Senate has had 3 days of mark up on S.744.

In this article, we shall examine a summary of the starting point of S. 744 affecting nonimmigrant visa classifications.

A.    F-1 Students:

*  Dual intent recognized for F-1 students in bachelor’s or graduate degree programs.

B.    New E  Specialty Workers:

*  Permits citizens of countries with whom the U.S. has Bi-Lateral Investment Treaties or Friendship, Commerce and Navigation Treaties to enter the U.S. as specialty occupation workers to work for a U.S. employer offering specialty occupation employment.

*  Requires the employer to file and obtain a certified a Labor Condition Application (“LCA”) from the U.S. Dept. of Labor.

* Also provides this benefit specifically to citizens of South Korea.

*  Limit is 5,000 visas per year per country.

C.    E-3 Visas for citizens of Ireland:

*  Irish citizens who seek E-3 status to perform services as an employee must have at least a high school education or its equivalent, or has, within 5 years, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience.

D.    Nonimmigrant Visa Portability:

*  Both H-1B status holders and now O-1 status holders can begin work with a new H-1B or O-1 employer upon the filing of a new, respective H-1B or O-1 petition provided the new petition is non-frivolous, the H-1B or O-1 status holder has not worked without authorization, and such person has been lawfully admitted.

E.    Deference to Previously Approved H-1B and L-1 Petitions:

*  If the prior petition does not have material error, a substantial change in circumstances, or adverse newly discovered information, USCIS to defer to the prior petition in exercising its discretion.

F.    Nonimmigrant Visa Revalidation Within the U.S:

*  Dept. of State to allow visa revalidation in the U.S. for A, E, G, H, I, L, N, O, P, R, or W for otherwise eligible and qualifying applicants.

G.    Nonimmigrant Stay and Employment Authorization Extensions:

*  Nonimmigrants in employment authorized A, E, G, H I, J, L, O P, Q, R and TN whose employers have filed a timely extension maintain status and employment authorization until the extension is adjudicated.

H.    H-1B Specialty Occupation Workers:

*  Range of H-1B visa numbers between 110,000 and 180,00 using a High Skilled Demand Index to vary the number.  Cap limited to changes of 10,000 visas per year.

*  The exemption for foreign nationals with U.S. earned Masters Degree or higher increases to 25,000 but it is limited to STEM occupations, including biological and biomedical sciences.

*  Spouses of H-1B will have employment authorization eligibility.

*  H-1Bs have a 60 days grace period after termination of employment to depart the U.S. During that period the H-1B considered in status for purposes of filing to extend, change, or adjust status.

*  Change to the DOL wage determinations from 4 wage levels to 3.  Level 1 = mean of the lowest 2/3 of all surveyed wages in an MSA.  Level 2 = mean of all wages.  Level 3 = mean of the highest 2/3 of all wages. Employer must pay 100% of prevailing wage.

*  4 level DOL wage determinations remain for nonprofit higher education institutions.

*  Employers must recruit for H-Bs by posting notice on a to-be-created DOL H-1B web site for 30 days before filing an LCA. Employer must offer position to a U.S. worker equally or better qualified.

*  H-1B employers must attest that they have not and will not displace a U.S. worker for 90 days after the date of filing an LCA.  Exempts employers whose number of employees in the same job classification has not changed in the past year.  For H-1B dependent employers, the non-displacement period forward and back is 180 days.

*  H-1B employers who outsource, lease otherwise contract for placement of services must pay a $500.00 fee.  Prohibition on outsourcing for H-1B dependent employers.

* New H-1B or L-1 Fee: In addition to existing H-1B fees, DHS is to collect a new fee from an employer using the H-1B or L-1 program.  The fee is $1,250.00 per H-1B petition provided the employer has not more than 25 full time or full time equivalent employees.  For employers with 26 or more employees, the fee is $2,500 for an H-1B or L-1 petition.  Nonprofit research institutions and nonprofit educational institutions are exempt from these fees.

*  Nonprofit institution of higher education, nonprofit research organization, and employers engaged in healthcare who file for a nurse, physician, physical therapist or similar position care not H-1B dependent notwithstanding the number of H-1B workers.

*  New definition of  “intending immigrant:” A foreign national who intends to live and work in the U.S. for whom a labor certification for 1 year or a filed employment based immigrant visa petition.  An intending immigrant is not counted as an employee in H-1B or L status in calculations required under the bill.

*  DOL to conduct annual compliance audits of employers who have more than 100 employees if more than 15% of such workforce is in H-1B status.

*  H-1B employers to provide H-1B foreign nationals with a copy of the entire H-1B petition within 30 days of filing the LCA.  Employer can redact proprietary or financial information.

*  USCIS or DOL to provide H-1B or L-1 foreign national with information on employee rights, employer obligations, and government agency contact information.

*  H-1B Dependent Employer Fees Increase:

1.    In fiscal years 2014-2024, a $5,000 fee for an employer who employs 50 or more employees if more than 30 percent and less than 50 percent of the applicant’s employees are H–1B nonimmigrants or L nonimmigrants.

2.    In fiscal years 2015-2017, a fee of $10,000 for an employer who employs 50 or more employees if more than 50 percent and less than 75 percent of the applicant’s employees are H–1B nonimmigrants or L nonimmigrants.

*  Nonprofit institutions of higher education are exempt from these fees and intending immigrants do not count as H-1B or L-1 employees.

*  Increases penalties for LCA violations to $2,000.  Exposes employers to liability for any employee harmed by the violation as to lost wages and benefits.

*  In determining prevailing wage level for an employee of an institution of higher education, or a related or affiliated nonprofit entity or a nonprofit research organization or a governmental research organization, the prevailing wage level only takes into account employees at such institutions and organizations in the area of employment.

* H-1B employers cannot

1.    Advertise any as only available to F-1 OPTs or H-1B nonimigrants;
2.    Advertise that F-1 OPT or H-1B will receive preference in the hiring process;
3.    Solely recruit individuals who are or who will be F-1 OPT or H–1B

* Limitation on total H-1B and L-1 nonimmigrants for a specific employer: Employers with 50 or more employees must sum the number of H-1B and L-1 employees.

1.    For FY 2015, that sum cannot exceed 75% of the total number of employees;
2.    For FY 2016, that sum cannot exceed  65%;
3.    After FY2016, that sum cannot exceed 50% of the total number of employees;

* DOL standard of review for LCA to include “completeness and evidence of fraud or misrepresentation.”

1.    DOL has 14 days to certify LCA instead of 7;
2.    Employer can file H-1B petition without LCA, but USCIS cannot approve petition until DOL certifies LCA;
3.    DOL can investigate if DOL finds evidence of fraud or misrepresentation.

* H-1B or L visa or status holder to receive a brochure of employer’s obligations and employee’s rights, and federal agency contact information which can provide additional information. If visa issued abroad, DOS to provide; if change done in the U.S. by USCIS, USCIS to provide.

I.    L-1 Intra-company Transferees

* Employer cannot place, outsource, lease or otherwise contract an L-1’s services unless L-1 would not be supervised by outplaced entity, the placement is not essential labor for hire, and other employer attests that it has not displaced and will not displace a United States worker during the period beginning 90 days prior to and 90 days after the date the employer files L petition.

* New Office L-1s: Petition can be approved for up to 12 months if:

1.    Nonimmigrant has not been the beneficiary of 2 or more petitions during the immediately preceding 2 years;
2.    The employer operating the new office has an adequate business plan, sufficient physical premises to carry out the proposed business activities; and
3.    The financial ability to start doing business immediately upon the approval of the petition.

* Extension approval requires:

1.    A statement summarizing the original petition; evidence that the employer has complied with the business plan;
2.    Evidence of the truthfulness of statements in the original new office petition;
3.    Evidence that the employer has been doing business at the new office through regular, systematic, and continuous provision of goods and services;
4.    Statement of the duties the nonimmigrant has performed at the new office during the new office approval period;
5.    Duties the nonimmigrant will perform at the new office during the extension period;
6.    Statement describing the staffing at the new office, including the number of employees and the types of positions held by such employees;
7.    Evidence of wages paid to employees;
8.    Evidence of the financial status of the new office;

*  Limitation on total H-1B and L-1 nonimmigrants for a specific employer: Employers with 50 or more employees must sum the number of H-1B and L-1 employees.

1.    For FY 2015, that sum cannot exceed 75% of the total number of employees;
2.    For FY 2016, that sum cannot exceed  65%;
3.    After FY2016, that sum cannot exceed 50% of the total number of employees;

* In FY 2014, employers with 50 or more U.S. based employees must pay an L-1 filing fee of $5,000 if more than 30%  and less than 50% of the employer’s employees are in H–1B or L-1 status.

*  For each FY 2014-2017, employers with 50 or more U.S. employees must pay an L-1 filing fee of $10,000 if more than 50% and less than 75% the employer’s employees are in H–1B or L-1 status.

* DHS can investigate L-1 employers for violations of L-1 requirements based on specific, credible information.  DHS can withhold identity of complaining witness.  24 month window.  Employer may request a hearing if DHS finds a reasonable basis for employer’s failure to comply and DHS must make a finding within 120 days after hearing.

1.    No federal court review of finding permitted.

* DHS may conduct voluntary surveys regarding employer compliance.

* DHS to conduct annual compliance audits of employers with more than 100 U.S. employees if more than 15% such employees are in L-1 status.

* DHS penalties up to $2,000 fine, debarment of 1 year for misrepresentation or failure to comply; up to $10,000 and 2 year debarment for willful failure.

* Employer can be liable to employees for lost wages and benefits harmed by each violation.

 

 

Stewart Rabinowitz practices United States immigration and nationality law. He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. Rabinowitz & Rabinowitz, P.C. is an immigration law firm representing businesses, families, and individuals.