H-1B Visa Changes Proposed in the Immigration Reform Bill

The proposed Senate Bill has the following language regarding the H-1B visa reform:

“We will raise the base cap of 65,000 to 110,000 (we amend the current 20,000 exemption for U.S. advanced degree holders to be a 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. Schools).

 In future years, the cap can go as high as 180,000. The cap will increase/decrease in the following way:

a. It will be based on two factors plugged into one formula known as the “High Skilled Jobs Demand Index” (with each factor weighed at 50%):

i. The percentage by which cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year exceeds/fails to meet the cap (50%)

ii. The inverse of the percentage increase/decrease between the previous fiscal year and the current fiscal year in the number of unemployed persons in the “management, professional, and related occupations category” of BLS data (50%).

b. The most the cap can increase/decrease by each year is 10,000 visas.

 We prevent H-1B workers from undercutting the wages paid to American workers by requiring employers to pay significantly higher wages for H-1B workers than under current law (and to first advertise the jobs to American workers at this higher wage before hiring an H-1B worker).

 We will provide spouses of H-1B workers with work authorization if the sending country of the worker provides reciprocal treatment to spouses of U.S. workers.

 We will establish a 60-day transition period for H-1B workers to change jobs.

 We will provide dual intent visas for all students who come here on bachelor’s degree programs or above.

 We crack down on abusers of the H-1B system by requiring “H-1B dependent employers” to pay significantly higher wages and fees than normal users of the program.

 If the employer has 50 or more employees, and more than 30% but less than 50% are H-1B or L-1 employees (who do not have a green card petition pending), the employer must pay a $5,000 fee per additional worker in either of these two statuses.

 If the employer has 50 or more employees, and more than 50% are H-1B or L-1 employees (who do not have a green card petition pending), the employer must pay a $10,000 fee per additional worker in either of these two statuses.

 We will also crack down on the use of the H-1B and L visas to outsource American jobs by prohibiting companies whose U.S. workforce largely consists of foreign guestworkers from obtaining additional H-1B and L visas.

 In Fiscal Year 2014, companies will be banned from bringing in any additional workers if more than 75% of their workers are H-1B or L-1 employees.

 In Fiscal Year 2015, the ban applies to companies if more than 65% of their workforce are H-1B and L-1 workers. In Fiscal Year 2016, the ban moves to 50%

 We require recruiting of American workers prior to hiring an H-1B nonimmigrant. The Secretary of Labor must establish a searchable website for posting H1B positions. The site must be operational and online within 90 days of the passage of the new law. We require employers to post a detailed job opening on the Department of Labor's website for at least 30 calendar days before hiring an H1B applicant to fill that position.

 We bar employers from recruiting or giving preference to H-1B or OPT workers over American workers.

 We establish significant new authorities and penalties to prevent, detect, and deter fraud and abuse of the H-1B and L-1 visa systems by employers.”

Posted by Mira Mdivani Corporate Immigration Attorney The Mdivani Law Firm

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Corporate Immigration Compliance Institute does not provide legal advice or engage in the practice of law. The information provided during training and included in the training materials is general information on the topics covered; it not intended to be a fully comprehensive analysis of the subjects addressed. If you have questions about specific applicability of laws, rules and regulations to your specific situation, or other questions of a legal nature, those questions should be directed to your legal counsel.

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