President Bush Signs the Omnibus Appropriations Bill for Fiscal Year 2005

In our recent e-mail magazine (which can be viewed at www.visaserve.com) it was reported that Congress passed the Omnibus Appropriations Bill for Fiscal Year 2005. On December 8th, 2004, President Bush signed the consolidated spending package containing numerous business immigration-related measures. The most salient of the provisions of the Bill make significant changes to the present H-1B and the L nonimmigrant visa categories.

The provisions of the law offer new opportunities and considerations for strategic immigrant (“green card”) and nonimmigrant planning for HR Professionals, House Counsel and other Business Professionals responsible for the immigration or recruiting function in various business organizations.

The following is a non-exhaustive overview of the provisions of the new law. The information provided in this overview is not offered as either legal advice or as our firm’s legal opinion.

New Considerations For H-1B Nonimmigrant Visa Processing:

A. Reinstatement of the Department of Labor Training Fee with Modifications: The new law sets forth additional fees for employers beyond the presently designated fee of $185.00 which is the filing fee for the Petition for a Nonimmigrant Worker (Form I-129).

-Reinstatement and increase of the additional fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”). (The ACWIA fee sunset on October 1, 2003).

-The Omnibus Appropriations Act reinstates the Department of Labor (“DOL”) Training Fee originally implemented pursuant to ACWIA. The fee is raised to $1,500.00.

-Employers that employ no more than 25 full-time employees (determined by taking into account an organization’s affiliates or subsidiaries) shall be able to submit a reduced DOL Training Fee in the amount of $750.

-Under ACWIA, there were certain types of petitions that were exempt from the DOL Training Fee. Pursuant to the provisions of the new law, it appears that those exemptions are still in effect and that if the exemption applies the employer need not pay the new $1,500.00/$750.00 fee.

-Employers who are exempt from the $1,500.00 or $750.00 Training Fee are: institutions of higher education, primary or secondary education institutions, nonprofit entities related to an institution of higher education, nonprofit research organizations, nonprofit entities engaging in an established curriculum-related clinical training, and governmental research organizations. Also exempt from the new training fees are second or subsequent requests for extensions of stay filed by the same employer (regardless of whether the employer was or would be required to pay the training fee for the initial petition or first extension), and amended petitions not containing a request for an extension of stay or to correct a CIS error.

-The new $1,500.00 and $750.00 fee appears to apply to all petitions filed with the CIS after December 8, 2004.

B. Establishment of a New Fraud Fee: The new law creates a Fraud Prevention and Detection Fee of $500.00 to help the government finance fraud investigations.

-Pursuant to the terms of the new law, the $500.00 Fraud Fee must be paid by petitioners seeking either an initial or a transfer of either an H-1B or an L nonimmigrant visa.

-According to the provisions of the new law, any petition to amend or extend made for a beneficiary for the same organization is exempt from the Fraud Fee.

-According to the provisions of the new law, the Fraud Fee applies to petitions filed with the CIS either on, or after, March 8, 2005.

C. There are new H-1B Cap Considerations under the new law: The provisions of the new law create new and important exemptions from the annual H-1B cap (established at 65,000 by IMMACT ’90).

-The new law makes available an additional 20,000 H-1B nonimmigrant visas on a fiscal year basis for beneficiaries who have earned a Master’s Degree (or a higher degree) from a U.S. institution of higher education.

-According to the new law, once these newly prescribed 20,000 visas have been used, the CIS is required to count additional cases against the cap for the fiscal year.

-The new law permits the CIS to accept petitions on behalf of up to 20,000 beneficiaries who have earned a Master’s Degree (or higher) from a U.S. institution of higher education for FY 2005.

New Considerations For L-1 Nonimmigrant Visa Processing:

A. Establishment of a New Fraud Fee: The new law creates a Fraud Prevention and Detection Fee of $500.00 to help the government to finance fraud investigations.

-Pursuant to the terms of the new law, the $500.00 Fraud Fee must be paid by petitioners seeking either an initial or a transfer of either an H-1B or an L nonimmigrant visa.

-According to the provisions of the new law, any petition to amend or extend made for a beneficiary for the same organization is exempt from the Fraud Fee.

-According to the provisions of the new law, the Fraud Fee applies to petitions filed with the CIS either on, or after, March 8, 2005.

B. Reinstatement of one year of work for qualification under L-1A/L-1B.

-Pursuant to the new law, L-1 temporary workers must have worked for a period of one full year outside the United States for an employer with a qualifying relationship to the petitioning employer.

-This change applies to petitions for initial L-1 classification filed with USCIS on or after June 6, 2005.
B. Changes/Modifications for L-1B “specialized knowledge” worksite placement.

-In response to numerous complaints, the new law mandates that L-1B temporary workers can no longer work primarily at a worksite other than with the petitioning employer 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 service related to the specialized knowledge of the petitioning employer.

-This provision will apply to all L-1B petitions filed with USCIS on or after June 6, 2005

-This new provision of the law shall apply to all extensions and amendments for individuals currently in L-1 status.

New Considerations For DOL Regulatory and CIS Nonimmigrant Compliance:

The provisions of the new law re-establish the audit powers of the DOL in connection with previously designated investigations concerning violations of the law by employers under ACWIA. The new law permits the DOL to investigate non-compliant employers under a host of circumstances. Employers are reminded that it is unlawful to retaliate against employees who complain about employer’s violations of the laws.

New Considerations For H-1B Prevailing Wage Levels:

Of particular interest are the changes that the new law makes to the prevailing wage rules and regulations. Beginning on March 8, 2005, the salary offered on all H-1B petitions must be 100% of the prevailing wage or the actual wage, whichever is higher. Prior to the new law, employers could pay H-1B workers 95% of the prevailing wage. In an improvement over the way the DOL calculates the prevailing wage, new rules require the DOL to revise its wage surveys to reflect at least four levels of wages commensurate with experience, education and level of supervision, rather than the two levels currently used.

The foregoing information is very general in nature as there are presently no regulations that interpret the new law. For additional information about the new law or its potential implications, please feel free to contact us at info@visaserve.com.

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