News Release from Jewell & Associates - November 22, 2004 On Sunday, November 21, 2004, Congress passed the Fiscal 2005 Omnibus Appropriations Bill (H.R. 4818), which contains significant amendments to the H and L visa categories. The bill will be presented to the President for signature shortly. Upon signing by the President, the bill will have been enacted into law. Some of the bill’s key immigration provisions include:
20,000 new H-1Bs: The new law will exempt from the annual H-1B cap 20,000 H-1Bs with advanced degrees from U.S. universities. This provision will go into effect 90 days from the date of enactment.
Increase in H-1B filing fees: Effective immediately upon enactment, the new law will restore the supplemental H-1B filing fee known as the “ACWIA fee,” and increase it to $1,500 per petition. Employers with no more than 25 full-time employees in the U.S. will be assessed only half of the full fee, however. In addition, each petition for an initial H-1B will carry a $500 supplemental fee that will go into a government account to be used for fraud-detection.
Change in calculation of the prevailing wage: The new law will eliminate the “95% rule” and instead require H-1B employers to pay at least 100% of the local prevailing wage for the occupation in question. However, the law will also require governmental surveys made available to employers for purposes of determining the prevailing wage to provide four levels of wages commensurate with experience, education, and the level of supervision. If a two-level wage survey is used (such as the widely used OES Survey, which provides only an “entry level” and an “experience” wage), the law will provide a formula for calculating the two additional intermediate levels. These provisions will go into effect 90 days from the date of enactment.
Restoration of requirements for “H-1B-dependent” employers: The new law will restore the requirement that employers who meet the definition of “H-1B dependent” or of “willful violators” make a non-displacement attestation (an attestation that U.S. workers have not been displaced) in connection with any H-1B filings. This provisions will go into effect 90 days from the date of enactment.
Limits on placement of L-1Bs at client sites: The new law will prohibit L-1Bs from being principally stationed at the worksite of an unaffiliated employer if L-1B employee will be controlled and supervised by the unaffiliated employer, or if placement of the L-1B employee at the third-party site is part of an outsourcing arrangement instead of in connection with the provision of a product or service involving specialized knowledge specific to the L-1B employer. This provision will apply to initial, extended or amended L-1B petitions filed 180 days from the date of enactment.
Restores 12-month service requirement to blanket L-1s: The new law replaces the requirement that beneficiaries of “blanket” L-1 petitions have only six months of service to the employer abroad with a twelve-month requirement. The twelve-month rule will apply only to requests for initial L-1 classification filed on or after the 180th day from the date of enactment.
© Jewell & Associates 2004