H-1B and L Nonimmigrant Provisions Pass House, Senate
By Elissa M. McGovern,
Greenberg Traurig, Tysons Corner Office
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On Saturday, November 20, 2004, the House and Senate both passed HR 4818,
the Consolidated Appropriations Act of 2005. Division J of that bill contains
some of the most significant work-related nonimmigrant visa provisions that
have been enacted in the recent past. GT attorneys worked closely with Congress
in the drafting and negotiating of this legislation.
|"It will benefit now and in the
future those who have attained a US master’s or higher degree, enabling
US employers to reap the benefit of those who obtain advanced degrees
The Senate has passed H.R. 4818, but will not present it to the President
until the House (which is returning on December 6) passes a technical amendment
(which already has been agreed to) fixing an unrelated issue. It will then
take a few days for the bill to be sent to the President for his signature.
Most provisions become effective 90 days after enactment, although a few
have different effective dates (which are noted below).
This bill, if implemented in a timely manner by CIS, has the ability
to make available additional H-1B numbers in this fiscal year. This will
be of significant benefit to those who were shut out this year or taken
by surprise by this year’s early reaching of the 65,000 annual numerical
limit. It will benefit now and in the future those who have attained a US
master’s or higher degree, enabling US employers to reap the benefit of
those who obtain advanced degrees here. In exchange, former fees paid by
employers for the privilege of employing H-1Bs have been resurrected and
expanded to include new fees and new categories, making the hiring of an
H-1B nonimmigrant a more expensive proposition.
The immigration provisions include:
Changes to the L nonimmigrant classification
Intracompany transfers of persons with specialized knowledge (L-1B visa
holders) have been the subject of controversy in the last two years. In
response to that controversy, Congress has now imposed a limit on the workplace
1. Limits on Worksite. L-1B visa holders are prohibited from
being stationed at a worksite in the US of an unaffiliated employer (an
employer other than the parent, sub, affiliated entity or the petitioner)
if either (a) the alien will be controlled or supervised principally by
the unaffiliated employer or (b) the placement of the L-1B is part of
an arrangement merely to provide labor rather than in connection with
the provision of a product or service for which specialized knowledge
specific to the petitioner is required. This provision will be effective
for applications filed on or after 180 days after the enactment.
Other provisions covering L nonimmigrants include:
1. Time spent in employment abroad. The 6 month requirement
of pre-employment for blanket Ls and returns to the one-year requirement
of pre-employment. Effective only to initial petitions filed 180 days
2. New fee. Ls will be subject to a new, one-time “fraud prevention
and detection fee” of $500 on all initial petitions. The fee is paid at
the time of the initial petition; for persons applying through blanket
Ls, the fee will be paid at the consulate. Effective date: Applies to
petitions 90 days after enactment.
3. Statistics. DHS will be asked to keep certain statistics
on L visa usage, including the number of L-1B nonimmigrants and the subset
of those working primarily at the worksites of unaffiliated employers.
4. Task Force/IG Report. Both an Inspector General report on
L visa abuses and the establishment of a task force to implement the recommendations
of the IG report are included.
Changes to H-1B Nonimmigrants
1. Exemption of Certain Aliens from the Numerical Limitations.
In a provision that will be the most complicated in terms of implementation,
Congress required the additional exemption from the annual numerical cap
on H-1B visas of graduates of US universities who have earned a master’s
or higher degree from an institution of higher learning. That exemption,
however, will be limited to 20,000 annually.
This provision becomes effective 90 days after enactment. How it is
implemented for this fiscal year, however, is already a subject of significant
conjecture. CIS could apply this retroactively for petitions filed in
FY2005 (those petitions filed from April 1, 2004 to October 1, 2004, when
the cap of 65,000 was reached). It is a two-part process requiring that
CIS first recapture any numbers of the already-approved H-1B petitions
which count as exempt cases, and then permit filing of new petitions in
this fiscal year (for both exempt cases, if any are left over, and of
any cases until the cap is again reached). GT will work with CIS to ensure
that this provision is implemented in as broad a manner as possible.
|"The bill makes permanent the
training fee for H-1B petitions that previously sunset, increases
the fee, and changes the allocations of the fee as well."
2. Education and Training Fees. These fees, which sunset in
2003, have now returned. The bill makes permanent the training fee for
H-1B petitions that previously sunset, increases the fee, and changes
the allocations of the fee as well.
The amount of the Education and Training fee will now be $1500 for
employers with more than 25 full-time employees; employers with 25 or
fewer employees will have to pay a fee of only $750. The determination
will be left to include any affiliate or subsidiary of the employer. This
section will be effective upon enactment, which will lead to significant
confusion at CIS with the intake of petitions after the President signs
the bill. Employers are advised to plan to include this check with their
3. Fraud Detection and Prevention Fee. As with L-1 visa applicants,
H-1B petitions will now be subject to an additional, one-time fee of $500
on all initial H-1B and L petitions. The fee will be required in all port
cases. It is to go to a fund for DHS, DOS and DOL for anti-fraud activities.
This provision is effective 90 days after enactment.
4. Changes to Prevailing Wages. The 5% differential that has
been permitted for variation of the required wage and the prevailing wage
will be eliminated. To compensate, DOL has been instructed to create a
four-tier prevailing wage system commensurate with experience, education
and level of supervision.
5. H-1B Dependency. H-1B dependent workers, first
added to the lexicon in 1998 and who sunset as a general issue in 2003,
are now back - permanently. Section 22 of Subtitle B makes permanent the
non-displacement and recruitment attestations for H-1B dependent employers.
This will be effective 90 days after enactment.
6. Additional H-1B sections: the bill also makes changes to
the DOL investigative authority where the is reasonable cause to believe
that the employer has violated the terms of an H-1B visa. In addition,
the good-faith defense is now applicable to some H-1B violations, where
there is a “technical violation” and the employer will be given a 10-day
period to correct technical deficiencies.
Many of these provisions will require some notice from CIS or DOL to
be implemented; others will require regulatory language. Others, such as
the return of the training fee, become effective upon enactment. GT will
keep you informed of the enactment and the implementation of the various
provisions as it happens.
© 2004 Greenberg Traurig
For more information, please review our Business Immigration Practice
description, or feel free to contact one of our attorneys.
This GT ALERT is issued for informational purposes only and is not intended
to be construed or used as general legal advice. Greenberg Traurig attorneys provide
practical, result-oriented strategies and solutions tailored to meet our clients’
individual legal needs.