On November 20, both the House and Senate passed new legislation amending the H-1B visa and L-1 visa categories.  This legislation is part of the omnibus spending bill which is expected to be enacted this week.  While the final bill is undergoing additional revision to make changes to other provisions relating to a tax issue, the modifications to the H-1B and L-1 visas have been approved by both Houses of Congress, and should appear in the final bill to be sent to the President for signature.  It is uncertain when the bill will reach President Bush's desk.  The National Journal's publication Congress Daily indicated that the House will come into session briefly Wednesday to pass the resolution by unanimous consent.  However, the American Immigration Lawyers' Association (AILA) suggests the bill may be held by the House of Representatives until their return on December 6, 2004 since the House must pass a technical amendment on a tax issue.

The legislation provides some relief from the H-1B cap, adding a new exception to the cap for 20,000 individuals with a Master's or higher degree.  Note that the advanced degree must be from a U.S. institution of higher education.  However, these new H-1B numbers will not become available until 90 days after the legislation's enactment.  Typically, H-1B cases can be filed six months prior to a requested start date, but it is uncertain whether USCIS will actually accept cases before the new law takes effect.

In addition to the providing H-1B cap relief, the legislation also adds substantial new fees for all H-1B applications, most notably a $1500 training fee to be required immediately upon enactment of the legislation, and a $500 fraud detection fee that will be required on all new H-1B applications, including H-1B transfers.

Note that the new fees could impact H-1B applications as early as next week.  Jackson & Hertogs is identifying H-1B applications in process and will attempt to file cases to avoid the new fee increases if possible.  If you have questions about an H-1B petition currently being prepared by our office please contact your attorney for assistance. 

The following is a summary of the proposed changes.

H-1B Legislative Changes

Effective immediately upon enactment:

• An additional $1500 training fee for all H-1B petitions by employers with 25 or more employees.  For employers with less than 25 employees, the additional fee is $750.  This is a reinstatement of the training fee requirement that sunset on September 30, 2003.

Effective 90 days after enactment:

• New $500 fraud detection fee to be imposed for all new H-1B visa petitions, and for all H-1B transfers to new employers.  The $500 fee would not be imposed on H-1B extensions for the same employer.
• 20,000 new H-1B visa numbers available annually for graduates of U.S. universities who have earned a Master's or higher degree from an institution of higher education.  
• Employers will be required to pay 100% of the prevailing wage rate for H-1B, H-1B1 (Singapore and Chile Free Trade Act), and labor certification applications.  The U.S. Department of Labor (DOL) will be required to provide at least four (4) levels of wages commensurate with experience, education and level of supervision.  Employers will be able to use surveys with four wage levels.
• The non-displacement and recruitment attestations for H-1B dependent employers are permanently reinstated.

DOL Investigative Authority for Labor Condition Applications (LCA): 

• DOL may initiate an investigation of any employer where DOL has reasonable cause to believe that the employer has violated the terms of the H-1B visa.  This is an expansion of DOL's investigative authority, which previously required either a complaint to be filed, or that the employer have been previously sanctioned in order for DOL to initiate an investigation.
• The law also provides DOL with the authority to excuse certain technical violations by employers if a good faith effort is made to comply with the regulations.  DOL can give employers 10 days to correct technical violations.  Note that good faith does not apply if there is a pattern or practice of willful violations of the regulations.

L-1 Legislative Changes

Effective 180 days after enactment:

• With certain exceptions, L-1B specialized knowledge visas will not be issued to individuals working at a site other than the petitioning employer's worksite.  This provision will apply to initial applications as well as to extensions or amendments.
• The blanket L requirement of 6 months continuous employment abroad will be amended to require 1 year of continuous employment abroad prior to the alien being eligible to file the application.  This provision will only apply to new petitions.

Effective 90 days after enactment: 

• A new $500 anti-fraud fee that will be paid by the employer at the time of initial application for an L-1 visa.  In the case of blanket L-1s, the fee will be paid at the U.S. Embassy/Consulate.

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