Immigration E-Alert: New Rules Affecting H-1B and L-1 Workers Expected to be Made Law Next Week

The Fiscal 2005 Omnibus Appropriations bill (H.R. 4818) passed by the House and Senate last week, and which will become law upon signature by President Bush (expected the first week of December), contains a number of changes to the Immigration & Nationality Act (INA) affecting the H-1B and L nonimmigrant categories. Amongst the most significant changes:

* A provision preventing an L-1B worker from being primarily stationed at the worksite of another employer in cases where:

(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.

* Where a U.S. employer files a petition for initial classification for Blanket L-1 status, the alien workers must satisfy the requirement of one-year of continuous employment overseas with the petitioning employer, a subsidiary, or an affiliate within the 3 years preceding the time of the worker's application for an L-1 visa. Previously, transferees applying for L-1 visas to work at a U.S. company that had been granted Blanket L-1 status were required to have only 6 months of prior continuous employment overseas with the company.

* Establishment of a fee of $1500 per H-1B petition, in addition to the filing fee (currently $185), for every initial, extension, or change-of-status H-1B petition filed by a U.S. employer that not (i) a primary or secondary education institution, (ii) an institution of higher education, (iii) a nonprofit entity related to or affiliated with any such institution, (iv) a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, or (v) a nonprofit research organization, or a governmental research organization.

* Establishment of a $500 fraud fee on all initial petitions for H-1B and L status, including consular applications for L-1 blanket visas. (Only petitions/applications of principal aliens will be required to be accompanied by the $500 fraud fee.)

* A provision requiring employers to pay 100% of the prevailing wage for the H-1B occupation. (Previously, employers were required to pay only 95% of the prevailing wage.)

* A provision exempting aliens who have earned a Master's Degree or higher from a U.S. university from the annual numerical cap on H-1B visas.

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All of the proposed modifications to the law would apply to initial, extended, or amended petitions filed on or after the date that the President signs the bill into law, which he is expected to do next week.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2018.

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