BUSINESS WATCH

It Will Cost a Lot to go to H But Not as Much to go to L -  An Immigration Update By Gregory B. Minter

 

2004 will be remembered as a major year in immigration law.   The 65,000 cap for new H-1B visas (persons in specialty occupations) was reached early in the year. Congress passed, and the President signed, bills to add 20,000 visas to the H-1B limit, add certain conditions to the H-1B and L classifications; and increase the filing fees for petitioners to obtain H-1B and L visas. The employment–based third preference immigrant visa category regressed for certain countries, and PERM was published. The following is a brief summary of those landmark events in immigration law.

 

H-1B Changes

 

On December 8, the President signed the Consolidated Appropriations Act of 2005 which, among other things, amends the H-1B and L programs. Because the 65,000 visa limit for H-1B visas was reached early in 2004, nonexempt employers lost their access to the H-1B program for initial hires.   The new law created a permanent exemption from the H-1B cap for up to 20,000 per federal government fiscal year for graduates of  U.S. universities who have earned a masters or higher degree. In exchange for this limited relief from the cap, the new law:

 

·          Increases the H-1B so-called training fee to $1,500.00 and makes it permanent. The fee is cut in half for employers with less than 25 full time employees. This fee went into effect upon enactment. It is in addition to the current $185.00 filing fee.

 

·          Reinstates the nondisplacement and recruitment attestations for H-B dependent employers, which had expired at the end of the federal government fiscal year 2003.

 

·          Increases the prevailing wage requirement from 95% to 100%. It also requires that where the DOL uses or makes available to employers a governmental survey to determine prevailing wage, such survey must provide four levels of wages commensurate with experience, education and level of supervision.   If a two level wage survey is used, the new law requires the application of a formula for calculating the additional two intermediate levels.

 

·          Reinstates and makes permanent the ability of the DOL to initiate an investigation of an employer.

 

·          Adds an additional $500.00 “fraud detection and prevention fee” to the other fees. It applies to employers filing either an initial petition for an H-1B or L visa or a change of status or change of employer petition.   The $500.00 fraud fee will also be charged for an alien filing a visa application abroad for an L blanket petition.   The fraud fee will go into effect on March 8, 2005, and will be split among the Department of State, Department of Homeland Security and Department of Labor in order to “fund their antifraud efforts.”  It will be in addition to any other filing fees.

 

The new training fee will be subject to the same exemptions as under previous law. Thus, the $1,500.00 fee will apply whenever an employer files an H-1B petition for any of the following purposes:  (1) an initial grant of H-1B status; (2) an initial extension of stay for individuals currently in H-1B status; or (3) authorization for a change in H-1B employers for individuals currently in H-1B status. The additional fee is not required for employers filing amended petitions unless the amended petition is being filed in conjunction with an initial request for an extension of stay. There are certain employers that remain exempt from the additional fee.

 

 

CONTINUED

 

 

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