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A Senate bill introduced by Ted Cruz (R-Texas) and Jeff Sessions (R-Ala.) would significantly restrict employers’ use of H-1B visas by setting a salary threshold of $110,000 for H-1B employees and raising other minimum criteria. The bill also proposes to eliminate the Optional Practical Training program for foreign students.
In addition to new wage requirements, the bill would raise H-1B eligibility criteria to require a doctorate or post-doctorate degree in addition to two years of work experience. Individuals holding undergraduate or master’s degrees would be required to have 10 years of work experience. Candidates with doctorate or post-doctorate degrees from universities in the U.S. would be prioritized.
The “American Jobs First Act,” S. 2394, would also overhaul employers’ obligations, attestations and notice requirements when seeking certification of a Labor Condition Application (LCA) for H-1B workers. Employers would be required to attest that they have recruited U.S. citizens and lawful permanent residents for the jobs and that they will not displace such workers with nonimmigrant workers. To boost transparency, employers would be required to disseminate LCA filings to all of their employees and publish them online.
The bill would broaden the Department of Labor’s investigative authority and increase penalties for employer violations, which include criminal prosecution for failure to comply with new recruitment obligations. Employers who violate LCA requirements could be fined up to $100,000 per violation and barred from applying for H-1B visas for five to 10 years. Displacing a U.S. worker could result in fines of up to $500,000 and permanent debarment from the H-1B program. The Labor Department would be required to regularly publish extensive program data.
Other visa categories would be affected as well. Under the proposed bill, foreign students with F-1 status would not be allowed to work, multinational employers would no longer be able to file blanket L-1 petitions, and the Diversity Visa program that grants 55,000 green cards to individuals from countries with low immigration rates to the U.S. would be terminated.
Cruz said that the bill “is a necessary effort to repair the H-1B visa program to prevent it from displacing American workers,” and that the proposal “aligns the program with its original intent.”
A detailed table of the bill’s provisions may be viewed here.
BAL Analysis: This proposed legislation would limit the number of individuals eligible for employment under the H-1B visa category, impose new obligations on H-1B employers and increase government oversight, with steep penalties for noncompliance. BAL will be working with clients to monitor and influence policy discussions. Please reach out to your BAL attorney if you have any questions regarding this legislation and how it would affect your business.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The U.S. House of Representatives is expected to vote Friday on an end-of-year spending bill that contains multiple immigration provisions, including doubling certain visa petition fees for employers of H-1B and L-1 nonimmigrants.
H-1B and L-1 Visa Fees
The bill would reinstate and increase the visa petition fees previously authorized under Public Law 111-230 to $4,000 for H-1B petitions and $4,500 for L-1 petitions and would require payment of these fees for extension petitions as well as initial filings. The fees apply only to employers with 50 or more U.S. employees, of whom more than 50 percent are in H-1B or L-1 status. These changes would remain in effect until Sept. 30, 2025.
Previously, these employers were required to pay $2,000 for initial H-1B petitions and $2,250 for initial L-1 petitions. The fees expired Sept. 30 when Congress did not reauthorize them in the stopgap spending bill.
Reauthorization of Immigration Programs
The bill would reauthorize the following immigration programs that were scheduled to expire, without any reforms:
These programs were temporarily extended in the short-term funding bill that was passed in September. The bill would reauthorize them until Sept. 30, 2016.
Visa Waiver Program Restrictions
The funding bill also includes the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015,” H.R. 158, which the House passed last week. These provisions aim to increase security in the Visa Waiver Program in light of recent terrorist attacks, through measures such as:
Federal government funding was previously set to expire Dec. 11, but Congress averted a government shutdown by voting to temporarily extend it until today. Congress is expected to pass another short-term spending bill that will fund the government through next Tuesday, to give the Senate sufficient time to pass the legislation.
BAL Analysis: Though the bill, if passed, would simply reinstate multiple immigration programs without any changes, the increase in the visa petition fees would impose significant costs on employers of H-1B and L-1 workers. BAL is continuing to monitor the progress of the legislation. Please contact your BAL attorney if you have any questions regarding this legislation and how it would affect your business.
A California law that provides for enhanced penalties for employers who violate E-Verify rules will take effect Jan. 1.
The law, A.B. 622, imposes state fines on employers unlawfully using E-Verify to check the employment authorization of an existing employee or job candidate who has not received an offer of employment, unless required by federal law or as a condition of receiving federal funds.
The new law is intended to prevent employers from misusing E-Verify, a voluntary system used to check employment eligibility of new employees. The E-Verify database is managed by U.S. Citizenship and Immigration Services, the Department of Homeland Security and the Social Security Administration. Federal regulations prohibit employers from using E-Verify to screen existing employees or job candidates who have not been offered employment.
The California law will also require employers who use E-Verify to provide an employee with notifications from the Social Security Administration or Department of Homeland Security containing information about the employee’s E-Verify case or a tentative non-confirmation (TNC) notice. A TNC indicates that an employee’s information entered into E-Verify did not match records in the federal database.
The law introduces hefty monetary fines. Employers who violate any of the provisions face civil fines of $10,000 per violation.
BAL Analysis: California employers should familiarize themselves with the new law and review internal E-Verify policies and procedures accordingly.
L-1B denial rates remained high in fiscal year 2015, with one in four petitions being denied, according to statistics recently released by U.S. Citizenship and Immigration Services.
L-1B nonimmigrant visas allow employers with overseas offices to transfer employees possessing “specialized knowledge” to their affiliated U.S. operations.
Of the 13,814 petitions the agency adjudicated during the fiscal year (Oct. 1, 2014 to Sept. 30, 2015), 75 percent (10,368 petitions) were approved, and 25 percent (3,446 petitions) were denied, terminated or withdrawn.
According to quarterly L-1B numbers published by USCIS, denial rates have improved in the last two quarters of fiscal 2015, falling from approximately 28 percent and 30 percent in the first and second quarters, respectively, to 21 percent in both the third and fourth quarters.
L-1B petitions by quarter, fiscal year 2015:
BAL Analysis: The numbers confirm the continued challenges faced by employers and their employees in applying for L-1B visas. L-1B petitions have been plagued by high rates of Requests for Evidence (RFEs) and denials, causing uncertainty for businesses relying on this route to transfer foreign employees with specialized knowledge. In August, USCIS issued guidance on how petitions are to be adjudicated by officers in order to clarify criteria for the L-1B visa. The guidance memorandum took effect Aug. 31, and its impact on approval rates remains unclear, given its very recent implementation and the subjective nature of these adjudications.
A bill has been introduced in the Senate that would reduce the annual number of H-1B visas by 15,000 and require allocation of visas based on the intended H-1B worker’s wages.
The “Protecting American Jobs Act,” S. 2365, would lower the H-1B annual cap to 50,000 from the current limit of 65,000. The bill would not amend the current allocation of 20,000 additional H-1B visas to individuals with advanced degrees from U.S. universities.
Under the proposed bill, if the number of H-1B petitions filed exceeds the numerical cap, the Department of Homeland Security would be required to allocate the 50,000 visas to workers who will earn the highest wages. This new allocation requirement would also apply to the 20,000 visas available to advanced degree holders if the number of petitions exceeds the cap.
The bill is cosponsored by Senators Bill Nelson (D-Fla.) and Jeff Sessions (R-Ala.). Nelson said that the proposed bill “directly targets outsourcing companies that rely on lower-wage foreign workers to replace equally qualified U.S. workers.” The two senators also co-sponsored a bill in November that would impose new obligations on employers of H-1B and L-1 workers and create additional enforcement mechanisms for DHS and the Department of Labor.
BAL Analysis: This proposed legislation would limit employers’ overall access to H-1B visas by lowering the cap and would alter the selection process by DHS. Though the bill is unlikely to move on its own, BAL will be working with clients to monitor and influence policy discussions. Please reach out to your BAL attorney if you have any questions regarding this legislation and how it would affect your business.
Employers who wish to retain E-Verify records that are more than 10 years old must take steps to download them before Dec. 31.
U.S. Citizenship and Immigration Services will delete 10-year-old records from the system Jan. 1, 2016. Employers who have been using E-Verify since before Dec. 31, 2005 and wish to preserve records from prior to that date should download the new Historic Records Report immediately. The report will only be available until Dec. 31.
E-Verify users can read instructions on how to download the Historic Records Report here and find additional information in the USCIS Fact Sheet.
Employers who began using E-Verify after Dec. 31, 2005 will not have any records in the report and, therefore, do not have to take action.
USCIS adopted the deletion schedule last year to comply with policies of the National Archives and Records Administration and to protect personal information contained in the records against risks of disclosure.
BAL Analysis: Employers should review their records retention policies, and if they need to retain E-Verify records that are more than 10 years old, they must act soon and download them before Dec. 31.
U.S. Citizenship and Immigration Services (USCIS) has confirmed that in January 2016 it will only accept employment-based adjustment of status applications according to the Application Final Action Dates chart – not the Dates for Filing chart – published in the State Department’s January Visa Bulletin earlier this week.
Employment-based immigrants must follow the Application Final Action Dates chart below to determine if they are eligible to file their adjustment of status petitions. Only applicants with priority dates earlier than the date listed in the chart will be eligible to file their adjustment of status applications in January. Family-based immigrants may, on the other hand, use the Dates for Filing chart, applicable to family-sponsored applicants, contained in the January Visa Bulletin.
Application Final Action Dates for Indian nationals in the EB-2 category will advance eight months to Feb. 1, 2008 (from June 1, 2007), according to the State Department’s January Visa Bulletin published today. The cutoff date for EB-2 China will remain at Feb. 1, 2012. All other EB-2 categories will remain current.
Final Action Dates for several countries in the EB-3 category will advance moderately: China will advance by more than two months to July 1, 2012; India will advance by approximately three weeks to May 15, 2004; Mexico will advance by one month to Oct. 1, 2015; the Philippines will advance by three months to Nov. 1, 2007; and all other countries will advance by one month to Oct. 1, 2015.
All EB-1 categories will remain current.
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for January. Those with priority dates earlier than the date listed for their category may be eligible to file for adjustment of status in January. However, applicants seeking to file for adjustment of status are reminded that this Dates for Filing chart does not control until U.S. Citizenship and Immigration Services confirms it via web posting within the coming week.
Dates for Filing of Employment-Based Visa Applications:
The U.S. House of Representatives today passed a bill that would place new restrictions on the Visa Waiver Program by barring individuals who have traveled to Iraq, Syria, or other hot spots since 2011 from traveling to the U.S. without a visa, and heightening program requirements for participating countries. The bill passed with a vote of 407 to 19.
A Senate bill was also introduced last week, and the White House has indicated support for tightening the Visa Waiver Program in the wake of terrorist attacks in Paris last month allegedly perpetrated by Belgian and French nationals.
The Visa Waiver Program currently allows nationals of 38 countries, mostly from Europe, to travel to the U.S. for up to 90 days without having to apply for a visa or appear at a U.S. consulate for an interview. The European Union’s ambassador to the U.S., David O’Sullivan, has indicated that restrictions on visa-free travel could “harm our economies and burden innocent people.” The EU is set to review its visa-waiver policies and O’Sullivan suggested that the actions of the U.S. could affect the outcome.
The House bill, H.R. 158 (“Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015”), would bar travelers from using the program if they have been to Iraq, Syria or “any other country or area of concern,” at any time since March 1, 2011 (when the Syrian conflict began), regardless of the traveler’s nationality. The bill would also require that all Visa Waiver Program travelers to the U.S. hold machine-readable passports and, by April 1, 2016, electronic passports containing biometric data.
The bill would also toughen criteria for countries participating in the program, and would authorize termination from the program for countries that do not comply. In addition to issuing machine-readable, e-passports by April 1, 2016, and putting in place mechanisms to validate such passports by Oct. 1, 2016, participating countries would also be required to report lost or stolen passports within 24 hours, screen all non-citizens through Interpol databases, and implement an agreement to exchange passenger information with U.S. agencies. The bill would also impose new reporting requirements by the Secretary of Homeland Security, including an annual review of participating countries.
BAL Analysis: The easy passage of the bill in the House and recent flurry of activity from Congress and the White House on this issue indicates momentum to make changes to the program. The bill’s provisions may be included in a larger budget bill that is currently being negotiated in Congress. Travelers using the Visa Waiver Program should anticipate additional screening measures and possible new restrictions on the program if legislation passes.
A bill introduced in the Senate on Tuesday by Dianne Feinstein, D-Calif., and Jeff Flake, R-Ariz., would require travelers approved under the Visa Waiver Program to submit fingerprints and photographs before traveling to the U.S. and hold an e-passport containing an electronic chip with biometric data and document authentication identifiers.
The bill, titled the “Visa Waiver Program Security Enhancement Act,” would also prohibit anyone who has traveled to Iraq or Syria in the past five years from entering the U.S. under the Visa Waiver Program – they would be required to obtain a visa at a U.S. consulate. The Department of Homeland Security would have discretion to deny entry to travelers under the program on national security grounds.
Other provisions of the bill would impose new criteria on countries participating in the program, including a requirement that countries fully implement intelligence-sharing agreements with U.S. agencies. The cost of security enhancements would be covered by increasing the visa waiver traveler fee.
The Visa Waiver Program has come under criticism for potential security gaps. The proposed bill follows Monday’s White House announcement on changes to the program in response to recent terrorist attacks in Paris. Approximately 20 million travelers from 38 participating countries, including most of Europe, travel to the U.S. under the program every year.
The bill has bipartisan support by cosponsors Ron Johnson, R-Wis., Martin Heinrich, D-N.M., Dan Coats, R-Ind., Heidi Heitkamp, D-N.D., Kelly Ayotte, R-N.H., Michael Bennet, D-Colo., Angus King, I-Maine, Mark Warner, D-Va., Tammy Baldwin, D-Wis., Jon Tester, D-Mont., Amy Klobuchar, D-Minn., Barbara Boxer, D-Calif., and Richard Blumenthal, D-Conn.
The House is expected to propose its own bill in coming days.