11/23/2004 IMMIGRATION ALERT

NEW LEGISLATION IMPACTS H-1(B) & L-1 VISAS
 

On Saturday, November 20, 2004, Congress passed a wide-ranging omnibus bill. Several riders attached to the bill impact business immigration, specifically H-1(b) and L-1 visas. It is expected to be signed by President Bush on December 6, 2004, after a minor adjustment (which is not expected to impact the immigration provisions) is made to the bill.

H-1(b) Visa Reform Act of 2004:
Re-enacts and raises the fee for each petition from $1,000 to $1,500. Employers with no more than 25 full-time employees will only pay $750.
Exempts foreign nationals who hold at least a US Masters degree earned from a U.S. institution from the H-1(b) cap, but limits the exemption to 20,000 applicants per year.

Requires employers to pay 100% of prevailing wage; eliminating the so-called 95% safe harbor.

Compels the Department of Labor (DOL) to create a four-level wage system. In the interim a temporary four-level wage system has been created, which is based on the current two-level system.

Adds a $500 "fraud" fee to all H-1(b) cases and to all L-1 cases. The fraud fee will be deposited in the "H-1B and L Fraud Prevention and Detection Account" and divided equally among DOS, DHS and DOL.

Re-enacts and makes permanent the provision requiring additional attestations on the LCA by employers who are H-1B dependent or have committed a willful failure or misrepresentation during the preceding 5 years.

Liberalizes the DOL's investigative authority.
The fee increases and dependent employer provisions go into effect immediately upon the signing of the bill by the President. The other provisions go into effect ninety days later.

L-1 Visa (Intracompany Transferee) Reform Act of 2004:
Does not bar L-1(b) employees from being placed at third party sites, as has been widely reported; however, it does bar L-1(b) visa holders from being primarily stationed at the worksite of another employer in cases where:

1) The L-1B visa holder will be "controlled and supervised" by the third party employer, or

2) The placement of the L-1B visa holder at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer.

Compels Blanket L applicants to have worked for the petitioning company's overseas affiliate for at least one year. Three years ago this section had been reduced to six months.

Establishes a Task Force to report on the vulnerabilities and the potential abuses of the L-1 system. Similarly the DHS is charged with reporting on the number of L-1 non-immigrants who work primarily off-site.

These provisions go into effect 180 days after enactment.

Hammond Law Group will be holding a free teleconference for all client-employers shortly. Please look for details in a forthcoming Immigration Alert.