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On December 8, 2004, President Bush signed the
Consolidated Appropriations Act of 2005. This Act
includes several important changes to the H-1B and L-1
visa categories, including significant new mandatory
filing fees, new rules for prevailing wage
determinations, limitations on off-site placement of
L-1B workers, and most importantly, another 20,000 H-1Bs
that will be available to certain beneficiaries starting
this fiscal year. As we previously advised,
the law provides some relief from the H-1B cap, adding a
new exception to the cap for 20,000 individuals with a
U.S. 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, that is March 8, 2005.
Typically, H-1B cases can be filed six months prior to a
requested start date. Based on a press release issued by
the CIS after President Bush signed the law, it appears
that the USCIS will not accept filings under the 20,000
exemption at this time. They state in the press release
that more information regarding the procedures for these
filings will be issued. However, it appears that there
will be an abeyance to filing prior to March 8, 2005.
This press release is posted to our web site under "news
items".
In addition to providing H-1B cap relief, the law also
adds substantial new fees for most H-1B applications,
which are required immediately. Starting
immediately, the H-1B scholarship and training fee will
be reinstituted. This fee must be paid by the employer
and the law provides for penalties if it is paid by the
employee. However, the fee (which was previously
$1,000) will now be set at $1,500 per filing. There is a
discounted fee of $750 for petitioners who employ 25 or
less "full-time equivalent" employees. Certain
employers, and certain H-1B extension requests, are
exempted from the fee. In addition to this fee, there
will be a $500 anti-fraud fee charged to all
initial H-1B and L-1 petitions starting on March 8,
2005. This fee must also be paid by the employer.
H-1B Changes
Effective immediately upon enactment, on December
8, 2004:
- An additional $1500 training fee
for most H-1B petitions by employers with more than 25
full-time equivalent employees. For employers with 25
or less employees, the additional fee is $750. A
calculation of the number of employees must include
affiliated organizations. This is a reinstatement of the
training fee requirement that sunset on September 30,
2003. Note that this new fee is not required if this
is the second extension for the same H-1B employer, so
some H-1B extension applications will not be required to
pay this fee. Also, certain non-profit employers and
educational institutions are exempt from paying the
training fee.
- The additional non-displacement and
recruitment attestations for H-1B "dependent" employers
are permanently reinstated. These provisions were
reinstated retroactively to October 1, 2003. For all
H-1B petitions now being filed, employers will be
required to address whether the employer is an H-1B
dependent employer and if so, if the employer is in
compliance with the recruitment and non-displacement of
U.S. worker provisions of the H-1B law.
Effective 90 days after enactment, on March 8,
2005:
- 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 per year will
be available annually for graduates of U.S. universities
who have earned a U.S. 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 on all of its wage surveys. Employers will
be able to continue to use private surveys which comply
with the regulations.
DOL Investigative Authority for Labor Condition
Applications (LCA):
- DOL may initiate an H-1B 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 must give employers 10 business
days to correct technical violations. Note that the
good faith exception does not apply if there is a
pattern or practice of willful violations of the
regulations.
L-1 Changes
Effective 90 days after enactment, on March 8, 2005:
- 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. Extensions
of L-1 stay for the same employer would not be subject
to this fee.
Effective 180 days after enactment, on June 6, 2005:
- 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 that the L-1
have 6 months of continuous employment with an
affiliate organization abroad will be amended and
extended to require 1 year of continuous employment with
an affiliate abroad prior to the alien being eligible to
file the application. This provision will only apply to
new L-1 petitions.
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