Immigration Law Advisory Bulletin
Changes in the H1-B and L-1 Visa Programs
By Christopher
R. Helm, James
M. Mei, and Richard
M. Rawson
[Dec. 2004]
On Dec. 8, the President signed the Omnibus
Appropriation Act of FY 2005 (the “Act”) which contains
some important changes to the H1-B and L-1 visa programs. Following
this, the U.S. Citizenship and Immigration Services (USCIS) and
the U.S. Department of Labor (DOL) made a number of announcements
regarding the H-1B and L-1 visa programs. Many of these changes
could affect your business plans for hiring of and filing petitions
for H1-B specialized professionals and L-1 intracompany transferees.
These and two
other recent changes are discussed in this bulletin.
New H-1B Legislation
Except as otherwise provided, the H-1B provisions will take effect
90 days after the date of enactment. However, sections regarding
the increased fees take effect immediately.
Key changes made to the H-1B program by this legislation:
- Reinstates the employer fees and makes these fees permanent,
and also raises the fee for each petition from $1,000 to $1,500.
Employers with no more than 25 full-time employees employed in
the United States are only responsible for one-half of the fee
amount.
- Adds a new $500 fraud fee. This fee is in addition to other
fees and applies to employers filing either an initial petition
for an H-1B or L visa or for a change-of-status petition. A $500
fraud fee will also be charged for an alien filing a visa application
abroad for a blanket L petition. The fee will be imposed only
on principal aliens (not family members).
- Adds a new "cap exempt" category for H-1B aliens who
have earned a Master's or higher degree from a U.S. institution
of higher education. This exemption is capped at 20,000 per fiscal
year.
- Requires employers to pay 100 percent of the prevailing wage.
Prior regulations allowed employers to pay 95 percent of the prevailing
wage found on the DOL's Online Wage Library or in an industry
salary survey.
- Widens the DOL's investigative authority in H-1B cases.
L-1 Visa Reform
Act of 2004
The Act makes the following changes to the L visa category, which
covers aliens who have been employed overseas by a firm with an
affiliated entity in the United States and who are coming to the
United States to perform services for the U.S. entity in a managerial
or executive capacity (L-1A) or in a capacity which involves specialized
knowledge (L-1B).
- L-1B workers can no longer work primarily at a worksite other
than their petitioning employer’s if the work will be controlled
and supervised by a different employer, or if the offsite arrangement
is essentially to provide labor for hire, rather than services
related to the specialized knowledge of the petitioning employer.
This applies to all L-1B petitions and to all extensions and amendments
for individuals currently in L-1 status, filed on or after June
6, 2005.
- L-1 workers must have worked for a period of no less than one
year outside the United States for an employer with a qualifying
relationship to the petitioning employer. This was increased from
6 months for those qualifying for blanket L petitions. The change
applies to new L-1 petitions filed with USCIS on or after June
6, 2005.
- A new $500 Fraud Fee must be paid by all petitioners seeking
an initial grant of L-1 classification, or seeking to change status
to L-1 classification. The new $500 fee applies to petitions filed
with USCIS on or after March 8, 2005. The fee will also be charged
for an alien filing a visa application abroad for a blanket L
petition. The fee will be imposed only on principal aliens (not
family members).
Mail-In Filing Only for the Rest
of FY2005
As we announced earlier this year, the FY2005 cap on H-1B visas
was reached on Oct. 1, 2004 (the first day of their availability).
Due to this, the USCIS recently announced that it will no longer
accept H-1B petitions filed using their Internet-based e-filing
system. H-1B extension petitions and other "non-cap"
H-1B petitions must now be filed using the mail-in process to the
relevant Service Center. H-1B petitions for the FY2006 fiscal year
(those starting on Oct. 1, 2005) may be filed starting April 1,
2005.
H-1B1 Petitions for Nationals of
Chile and Singapore
Please remember that Chile and Singapore nationals are counted
separately from other H-1B "cap" cases and the limit for
these petitions has not yet been reached for FY2005. These cases
are referred to as
"H-1B1" cases. The DOL has recently published its interim
final rule to provide procedures for the new H-1B1 classification.
H-1B1 cases will be processed in a manner similar to the existing
H-1B program, with some differences.
Please feel free to contact the immigration professionals
at Davis Wright Tremaine for further information on this issue.
This
Immigration Law Advisory is a publication of the Employer Services
Department of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent developments
in immigration law. It is not intended, nor should it be used, as
a substitute for specific legal advice as legal counsel may be given
only in response to inquiries regarding particular situations.
Copyright
© 2004, Davis Wright Tremaine LLP.
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