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US Immigration Reform Update: H-1B & Employment Visas
- 1. US Immigration Reform Update Prepared and updated for LnT Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 2. Immigration Reform: H-1B Petitions Since January 1, 2013, there have been three (3) employmentbased immigration bills that have been introduced into the U.S. Senate, which are the following: • The Immigration Innovation Act of 2013 (S. 169) (January 29, 2013): Introduced by Senators Hatch (4), Klobuchar (D), and Rubio (R), and Coons (D) • The H-1B and L-1 Visa Reform Act of 2013 (S. 600) (March 18, 2013): Introduced by Senators Grassley (R) and Brown (D) • The Border Security, Economic Opportunity and Immigration and Modernization Act (S. 744) (May, 2013): Introduced and passed :Senators Schumer (D), Durbin (D), Bennett (D), Menendez (D), McCain (R), Rubio (R), Flake (R), Graham (R), referred to as the “Gang of Eight” Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 3. Border Security, Economic Opportunity and Immigration Modernization Act of 2012 (S.744) • 800 page bill would: • Strengthen border protections • Increase interior enforcement • Change the employment-based and family-based visa systems • Allow undocumented immigrants to obtain legal status • MAJOR GAME CHANGER FOR DEPENDENT EMPLOYERS Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 4. Immigration Reform: H-1B Petitions Impact Analysis of the Numbers Current H1-B quota is 65,000 and an additional 20,000 for US Advanced degree holders. The reform would increase these amounts to 110,000 and 25,000, respectively. In future years, the cap can go as high as 180,000, according to a demand-based formula The most that the cap could increase or decrease by is 10,000/year Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 5. Immigration Reform: H-1B Petitions The Impact on Employers Prevailing wages will be revised significantly upward Employers will be required to advertise the position to American workers, for at least 30 days, before submitting an H1B application Spouses will be eligible to work, IF the assignee’s country of residence provides reciprocal treatment Dual intent visas will be granted for all students in the US on bachelors degree programs or higher Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 6. Immigration Reform: H-1B Petitions Additional Restrictions & Enforcement Anti-outsourcing measures will be included and will target US companies that have a high percentage of H1B and L visa holders. A ban on recruiting foreign workers will go into effect if the employer reaches the following limit of workers in either H or L status: 2014: >75% 2015: > 65% 2016: > 50% New penalties and enforcement will be implemented to prevent, detect and deter alleged fraud and abuse of the H1B and L1 visa systems Mandatory annual audits, for selected employers, will be conducted Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 7. Immigration Reform: H1B & L1 Visa Filing Fees The Cost to Employers Current USCIS Filing Fee Schedule Proposed USCIS Filing Fee Schedule I-129 Fee $325 $325 Fraud Fee: $500 $500 ACWIA Fee: $1500 $1500 Public Law $2500(>50 workers & > 50% H/L) 111-230 Fee: $5000 (>50 workers, 30-50% H/L) Premium Processing Fee (Optional) $1225 $1225 Total Potential Cost $6050 $8,550 (>50 workers, 30-50% H/L) That equates to a 54% and 144% increase, respectively! H/L) $13,550 (>50 workers and >50% Troy New York Miami $10,000 (>50 workers and >50% H/L) San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 8. Immigration Reform: Employment-based visas (Greencards) Allocation under pending Senate Bill S.744 EB-1 (Aliens of Extraordinary Ability, Multi-National Managers/Executives, Outstanding Professors/ Researchers) (Exempt from the annual numerical limit); EB-2 (Advance Degree Professionals, NIW) (40% of all employment-based visas permitted each fiscal year); EB-3 (Professionals and Skilled Workers) (40% of all employment-based visas permitted ); EB-4 (Special Immigrants: Ministers, Broadcasters, Employees of Government Abroad) (10% of employment-based visas); EB-5 (Investors) (10% of all employment based visas). Current Allocation of Greencards EB-1 (28.6% of employment-based visas); EB-2 (28.6% of employment-based visas); EB-3 (28.6% of employment-based visas); EB-4 (7.1% of employment-based visas); EB-5 (7.1% of employment-based visas). Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 9. Immigration Reform: Employment-based visas (Greencards) Removal of Per Country Ceiling Will Benefit: • India • China • Mexico • Philippines • This could be a detriment to other foreign nationals Merit-Based Visa: • 120,000 based on education, experience and job classification Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 10. Immigration Reform: Enhanced E-Verify • All employers will be required to use E-Verify over a 5 year phase-in period Number of Employees Phase in Period > 5000 employees 2 years > 500 employees 3 years <500 employees 4 years Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 11. Immigration Reform: Considerations for US Employers • • • • • • • E verify compliance No outsourcing or outplacement (services included)!!! Safeguards against displacement of US workers The changing utilization of staff augmentation models Organization-wide awareness of audits, investigations, and unannounced site visits Enhanced options for foreign nationals and its impact on employers Intending Immigrant (massive filing of PERM) Troy New York Miami San Francisco Mumbai © 2013, Fakhoury Global Immigration
- 12. Fakhoury Global Immigration 3290 West Big Beaver Road Suite 510 Troy, MI 48084 248-643-4900 rami@employmentimmigration.com www.employmentimmigration.com © 2013, Fakhoury Global Immigration
Hinweis der Redaktion
- The cap will increase and decrease based on two factors: (1) the percentage by which cap subject nonimmigrant visa petitions approved for a fiscal year exceeds or fails to meet the cap (i.e., the demand), and (2) the percentage increase and decrease in the fiscal years with respect to the number of unemployed in the U.S. (i.e., the unemployment rate in the U.S.)
- With respect to H-1B wage rates that are required to be paid, the Senate bill provides the following: If the employer is an H-1B dependent employer, the employer must offer wages that are not less than Level 2 wages. As a result, H-1B dependent employers may not pay level 1 wages to an H-1B employee, as they are now permitted. The bill provides new guidelines for computing the prevailing wage levels for most H-1B employers. It eliminates the four (4) level wage system that currently exists, and provides three (3) levels of wages, based on experience, education, and level of supervision, and provides new definitions with respect to those wage levels. Level 1 is defined as the lowest two-thirds of wages surveyed by the government, but in no case less than 80% of the mean of the wages surveyed. Level 2 is the mean of wages surveyed. Level 3 shall be the mean of the highest two-thirds of wages surveyed. These new definitions for Level 1, Level 2, and Level 3 will likely result in H-1B employers to pay their H-1B workers more than what they currently may be paying them under the current wage level system. If the H-1B employer is a nonprofit institution of higher education, the bill creates a four level (4) wage system.
- Senate bill (S. 744) has provisions to reallocate the distribution of employment-based visas issued each fiscal year. Every fiscal year (October 1st to September 30th), the government allocates 140,000 employment-based visas. These employment based visas are divided by each employment-based category by percentage. Once the visas have been used up before the end of the fiscal year (because of demand), foreign nationals will have to wait until the next fiscal year in order to be issued an immigrant visa (i.e., green card), even if their priority date is current and their green card application is complete and ready to be approved. By making the EB-1 category exempt from the numerical limitation of the 140,000 employment-based visas possible each fiscal year, it allows more people to receive immigrant visas (i.e., green cards), than would have in prior fiscal years.