From Fragomen.com, 05/22/2013
After several weeks of
hearings and mark-ups, the Senate Judiciary Committee on Tuesday approved S.
744, the comprehensive immigration reform package, by a vote of 13 to 5. The
bill now proceeds to the full Senate for debate, which is expected to begin
next month.
The last hours of mark-up saw several amendments to the
provisions of the bill affecting nonimmigrant workers. These are summarized
below.
The H-1B cap. The
final version of the bill includes a higher H-1B cap baseline of 115,000 and a
new formula that will allow for quota increases of 5,000 to 20,000 within a
fiscal year if demand exceeds the cap and the unemployment rate for managerial,
professional and related occupations is less than 4.5 percent.
H-1B skilled worker dependency. Amendments
to the bill introduce enhanced recruitment and non-displacement obligations for
the “H-1B skilled worker dependent employer,” which is defined as an employer
whose skilled workforce – comprising full-time equivalent employees in
occupations within Zones 4 and 5 of the Labor Department’s O*NET database – is
made up of 15 percent or more H-1B workers. Intending immigrants would not be
included in the workforce calculation if their employer had filed permanent
residence petitions for at least 90 percent of the labor certifications for
which it received approvals within a given timeframe.
Recruitment. Employers
would be required to post H-1B jobs on a DOL website, engage in good faith
recruitment using industry-wide standards, and offer compensation at least
equal to that offered prospective H-1B nonimmigrants. DOL would be required to
facilitate the posting of H-1B jobs on the websites of state workforce agencies
(SWAs). H-1B skilled-worker dependent employers would be required to offer a
job opening for which an H-1B worker is sought to any to any equally or better
qualified U.S. worker who applies for the position.
Non-displacement. An
H-1B employer, other than one who is H-1B dependent or skilled-worker
dependent, is prohibited from displacing a U.S. worker if the employer is: (1)
filing an H-1B petition with the intent or purpose of displacing a specific
U.S. worker from the position to be occupied by the beneficiary of the
petition; (2) providing services to worksites operated by federal, state or
local government employer entities that would direct and control the work of
the prospective H-1B employee; or (3) a public school. H-1B skilled worker
dependent employers would need to attest that they did not and would not
displace a U.S. worker 90 days before or after filing an H-1B petition. For
H-1B dependent employers, the non-displacement period would remain 180 days
before and after filing.
Outplacement restrictions on H-1B dependent employers. The
amended bill retains the prohibition against outplacement by H-1B dependent
employers, but clarifies that dependent employers who are nonprofit institutions
of higher education, nonprofit research organizations or health care providers
petitioning for physicians or other health care workers would not be not
subject to the restrictions, though they would be required to pay an
outplacement fee.
H-1B spousal work authorization. The
amended bill eliminates a provision that would have granted H-1B spousal work
authorization only if the principal H-1B’s home country provided reciprocal
benefits to similarly situated spouses of U.S. citizens. However, the bill
allows the Department of Homeland Security, at the request of the State
Department, to suspend H-1B spousal employment authorization for nationals of
countries that do not provide reciprocal benefits.
L-1B outplacement. The
amendment prohibits the outplacement of L-1Bs if 15 percent or more of an
employer’s full-time equivalent workforce is made up of L-1Bs, including
intending immigrants. Otherwise, employers would not be permitted to outsource
or outplace an L-1B unless: (1) the worker is controlled and supervised by the
petitioning employer; (2) the placement is not an arrangement to provide labor
for hire; and (3) the employer pays a $500 STEM education and training fee.
Covered employers. For
purposes of the H-1B dependency and skilled-worker dependency calculations,
intending immigrants are not included in the calculation if their employer is a
“covered employer.” The amended bill redefines covered employer to mean an
employer who has filed I-140 petitions for at least 90% of current employees who
were beneficiaries of applications for labor certifications that were approved
during the one-year period ending six months before filing the H-1B or L-1
petition for which the number of intending immigrants is relevant.
Adjustment of status portability. The
amended bill clarifies that, for purposes of adjustment portability, approved
I-140 petitions remain valid even if withdrawn by the petitioning employer,
provided that the adjustment applicant has a new job in the same or a similar
occupational classification.
Adjustment filing before visa availability. Under
the amended bill, a foreign national would be eligible to file an adjustment
application concurrently with an immigrant petition or at a later point whether
or not a visa number is available. If a visa number is not available at the
time the adjustment is filed, the principal applicant would be subject to a
supplemental fee of $500; dependents would not be liable for the fee.
Effective date. The
provisions of the bill would affect all petitions and applications filed on or
after the date of enactment, but the H-1B recruitment and non-displacement
provisions would not apply to extensions or other petitions or applications
filed on behalf of existing employees.
What Is Next for S. 744? The Senate immigration bill has several hurdles to
overcome before it becomes law. The package approved by the Judiciary Committee
on Tuesday is subject to additional changes on the Senate floor. If the bill is
passed in the Senate, it will need to be reconciled with legislation passed by
the House of Representatives. The House is at the early stages of crafting its
own immigration bill, and it is not yet clear how much it will resemble the
Senate’s approach.
