New Laws Affecting US Visas For Foreign National Employees
Editor's Note: This article was authored by Donald Wolfson and Michael Mandel of Wormser, Kiely, Galef & Jacobs LLP and was misattributed to Paul Parsons in error (corrected 12/17/04)
President Bush recently signed into law the Omnibus Appropriations Act for FY 2005, which includes changes to the H-1B (specialty occupation workers) and L (intracompany transferee) visa categories. This piece summarizes these changes.
Beginning March 8, 2005, an additional 20,000 H-1B visas for this fiscal year will be available to anyone who has earned a master's or higher degree from a U.S. institution of higher education. According to a press release issued yesterday by the U.S. Citizenship and Immigration Services (USCIS), applications for these visas cannot be filed at this time. We will obtain more guidance soon from the USCIS on eligibility requirements and filing procedures.
2. H-1B Training Fee
All H-1B petitions, except those that are exempt (described below), will require a training fee, in addition to the regular filing fee of $185. U.S. employers, including affiliates and subsidiaries, with more than 25 full-time employees must pay a training fee of $1,500. Employers with 25 or less employees may pay a reduced fee of $750. These fees are effective immediately. [The money raised from these fees will be used to train American citizens, permanent residents and other U.S. workers, or enable them to attend job training programs and receive scholarships or grants for mathematics, engineering or science enrichment courses.]
Employers who are exempt from the $1,500 or $750 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 USCIS error.
Premium processing still remains an option for all H-1B petitions (for an additional $1,000, USCIS will process the petition within 15 calendar days).
3. Fraud Prevention and Detection Fee
Effective March 8, 2005, a new $500 Fraud Prevention and Detection Fee must be paid by all employers filing an initial petition for H-1B classification or those seeking to change to a new employer. There are no exceptions to this fee, other than for petitions to amend or extend a beneficiary's H-1B status with the same employer.
4. H-1B Prevailing Wage Level
Also beginning 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 Act, employers could pay H-1B workers 95% of the prevailing wage. In an improvement over the way the U.S. Labor Department calculates prevailing wages, new rules will require the Labor Department 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.
Effective March 8, 2005, a new $500 Fraud Prevention and Detection Fee must be paid by all employers seeking a beneficiary's initial grant of L-1 classification or those seeking to change to a new employer. There are no exceptions to this fee, other than for petitions to amend or extend a beneficiary's L-1 status with the same employer.
2. Qualifying Time for L Visa Petitions
Beginning June 6, 2005, foreign workers will no longer be eligible for an L-1 visa under a "blanket L" petition if they have worked abroad for six months. Instead, all foreign nationals will need to have been employed for at least one year outside of the U.S. by an employer with a qualifying relationship to the petitioning employer in order to qualify for L-1 visa status.
3. Offsite Employment of L-1B Specialized Knowledge Workers
For L-1B (specialized knowledge) petitions filed on or after June 6, 2005, L-1B workers can no longer work primarily at a worksite other than that of their petitioning employer if their work will either be controlled and supervised by a different employer, or if the offsite arrangement is simply to provide labor for hire, rather than in connection with the employee's specialized knowledge of a product or service of the petitioning employer. These offsite restrictions will apply to all L-1B petitions, including initial petitions, extensions and amended petitions for workers currently in L-1B status.
In Other News...
Increased Waiting Time for Visas for Certain Employment-Based Petitions
Although unrelated to the omnibus legislation signed by President Bush yesterday, the U.S. State Department announced this morning that visas for employment-based third preference petitions (for skilled workers, professionals and other workers) have become backlogged for individuals from India, China-mainland born and the Philippines. Visas are now available for these individuals only if their petitions were filed on or before January 1, 2002. Visas for petitions filed after that date will only become available as the government begins to reduce the backlog. All other employment-based categories remain current.
This article is copyrighted by (c) 2004 Wormser, Kiely, Galef & Jacobs LLP.
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