Debra R. Shpigler Co., LPA
NEW LAW CHANGES H-1B AND L-1 PROGRAMS
The Omnibus Appropriations Bill that President Bush signed into law on December 8, 2004 contains provisions that will change many key aspects of the H-1B and L-1 visa categories. Among other things, the new law reinstates and increases old filing fees, creates new fees, provides additional exemptions from the H-1B cap, and tightens rules for people working in the L-1 classification.
The new law reinstates the “worker re-training” fee that was in effect before October 1, 2003 and raises it from $1,000 to $1,500. Companies that employ no more than 25 full-time equivalent workers, including affiliates or subsidiaries, may pay a reduced fee of $750. Employers who were exempt from paying the old $1,000 fee are exempt from paying the new fee. The new fee must accompany all petitions filed after December 8, 2004.
Fraud Prevention Fee
The new law also requires all petitioners who are applying for an initial grant of H-1B or L-1 status to pay a “Fraud Prevention and Detection” fee of $500. This new fee must also be paid by employers seeking to change the beneficiary’s employer. Petitions to amend or extend status filed by an existing H-1B or L-1 employer for an existing H-1B or L-1 worker are exempt from this fee. This fee will apply to all petitions filed on or after March 8, 2005.
20,000 H-1B Beneficiaries with advanced degrees exempt from cap
The new law also exempts the first 20,000 H-1B workers who have earned a master’s degree or higher from a U.S. university from the annual H-1B cap of 65,000. After USCIS (former INS) fills those 20,000 positions, USCIS must count these cases against the cap for the rest of the year.
Prevailing wage increased from 95% to 100%
The new law increases the prevailing wage requirement from 95% to 100%. Thus, an employer must now pay 100% of the prevailing wage to a prospective employee; the 5% variance from that wage is no longer permitted.
Conrad 30 Physicians Exempt from cap
A separate law signed by President Bush exempts so called “Conrad 30” physicians from the H-1B cap. These physicians are in the U.S. on J-1 (exchange visitor) visas, and they are entitled to obtain a waiver of the two-year foreign residency requirement, if a federal or state agency requests the waiver.
Changes to L-1 Program
There are also several new rules which apply to the L-1 workers. First, all L-1 workers must prove that they have worked for at least one year outside the U.S. for the related foreign employer. Before the new law was passed, workers who were included in a “blanket” L-1 petition only had to show that they had worked for the overseas employer for six months. Second, the new law changes the rules regarding offsite employment. Third, employers seeking new L-1 workers must pay the new Fraud Prevention fee of $500.
CHANGES ARE COMING TO THE LABOR CERTIFICATION PROCESS
Effective March 28, 2005, the foreign labor certification process, which is the preliminary step in applying for permanent residence in most employment-based cases, will undergo dramatic changes. The Department of Labor, which oversees the labor certification program, has issued new regulations that will change the way that employers meet the program’s requirements.
An employer that sponsors an alien in the 2nd or 3rd preference categories must generally file an Application for Labor Certification with the U.S. Department of Labor before filing an application for permanent residence on behalf of that alien. As part of the process, the employer must prove that it could not find a U.S. worker to do the job. Thus, the employer must engage in a recruitment campaign to see whether there are U.S. workers who are qualified for the job.
PERM will change the way in which the recruitment campaign must be conducted. It will also change the way in which the Application for Labor Certification is filed. The following is a short list of some of the changes that are mandated by PERM:
The regulations also describe the way in which pending Applications for Labor Certification can be converted to PERM cases, as well as a number of more technical issues.
Overall, the new PERM rules represent a major departure from the old labor certification system. Whether they will result in a faster, more streamlined process remains to be seen.
This Immigration Bulletin is not intended as a substitute for professional legal advice.
Debra R. Shpigler is a member of the American Immigration Lawyers Association.