| 
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.
return to Advisory
Bulletins main page |
