» Immigration Law Updates

Draft and Proposed H-1B legislation

February 3, 2017

In the past two weeks, several proposals for H-1B legislation have been reported.  Two are bills submitted to the Congress and two are expressions of intent to submit H-1B and L reform bills to Congress.  In addition, there is a draft President Executive Order which addresses broadly aspects of the H-1B process and intended reform.

At this point, what, if any, proposals will actually become law is highly speculative, and the timing for implementation is unpredictable. Here are some highlights of the possible changes being presented:

Congresswoman Zoe Lofgren’s (D) bill submitted to House of Representatives:

The most onerous provisions of this bill are aimed at IT consulting companies hiring 15% or more H1B employees or that have 50% or more employees in H or L status. This bill does not have bi-partisan support, so it is unlikely to move, but we may see some of its ideas or provisions incorporated into other bills.

• Includes H-1B salary increase to minimum $130,000. Applies only to H-1B dependent employers with 15% or more H-1B employees
• Under the proposed legislation, an H-1B dependent employer must test the labor market before filing any H-1B petition.  In this way, the proposal eliminates the existing Master’s degree exception for H-1B dependent employers 
• Contains market-based adjustments (increases) to the required prevailing wage for all H petitions, regardless of whether the employer is H-1B dependent. 
• H numbers subject to the fiscal year cap are to be distributed according to priority groups, including 20% allocated for small and start-up employers

Congressman Darryl Issa’s (R) bill submitted to House of Representatives with a Democratic Congressman co-sponsor:

All provisions are aimed at H-1B dependent employers.  This bill has bi-partisan support, but we do not think it will go far enough for the Republican majority.

Requires that H-1B dependent employers test the labor market before being eligible to file an h-1B petition.

• Eliminates existing exemption from requirement to test the labor market before filing an H-1B  for Master’s degree holders
• Preserves the current labor market test exemption for H-1B dependent employers who pay a “high” salary, but raises the salary requirement from $60,000 to $100,000

Senator Grassley (R) and Senator Durbin’s (D) proposal on H-1B and L reform (not submitted to Congress yet)

This bill has been around in different forms since 2007.  The most recent iteration is a bill that was posted in 2015, but we anticipate the actual proposal will differ once submitted to Congress for consideration. Most recent available version provides that:

• All H-1B petitioning companies must be enrolled in E-Verify
• Before filing an H-1B, all employers must undergo a 30 test of the market to determine if there is a US worker for the position who is equally or better qualified for the position. If such a US worker applies, then the H-1B may not be filed
• Employers with 50% or more H and L employees would not be eligible to file for H-1Bs
• H cap numbers to be distributed according to certain priority groups such as US Master’s holders, highly compensated employees, highly skilled employees
• Prevailing wages are to be adjusted upward to increase what salary must be paid to an H-1B worker
• Increased reporting required on both the H and L visa program
• Increased enforcement on L visas
• Sets a salary threshold for L visas
• Contemplates need to hire (and pay for) 200 additional government employees to do the additional work required by the proposed changes

Senator Sherrod Brown (D) announced bipartisan support of H and L reform bill

Seeks to address abuse of H and L programs by those who overuse these visas—H-1B dependent employers/IT consultants

• Requires test of the market  to determine if US worker if available and qualified for the H-1B role
• Establishes wage requirements for L visa holders
• Requires additional government oversight to investigate fraud and abuse and increased penalties

President Trump’s Proposed Executive Order on Work Visas

As of this date, this Executive Order is in draft form.  In general, it seeks to review many aspects of the employment-based immigration system by asking various agencies to review existing regulations and systems and report back within anywhere from one month to several months with recommendations.  This review is to be conducted through the prism of hiring US workers first and addressing fraud/misuse of many work visa programs.

• Lacks specifics on H program but US workers to be protected and given priority across the board
• Supports allocating H visas to the “best and the brightest”
• Seeks increased site-visits, reporting, and detection to root out misuse and fraud

We will report on the Executive Order relating to skilled foreign workers once it is issued.