As we have previously reported, the H-1B nonimmigrant visa for specialty occupations was unavailable for much of 1998, because the numerical cap of 65,000, was reached on May 11, 1998. Recently, a new bill was signed into law which provides a temporary increase in the H-1B visa numbers for the next three fiscal years through fiscal year 2001. In addition to an immediate increase in the cap, several other changes were made to the H-1B nonimmigrant visa.
Temporary Increase in H-1B Numbers.
The new law increases the number of H-1B visas available from 65,000 to 115,000 in 1999 and 2000, and 107,500 in 2001. The cap reverts to 65,000 in 2002.
New H-1B Application Fee.
A new fee of $500 will be imposed for each H-1B nonimmigrant visa petition. This fee is in addition to the $110 fee required for Form I-129, Petition for a Nonimmigrant Worker, resulting in a cost of $610 per H-1B visa payable to the INS. The extra fee's proceeds will be used to fund job training programs for U.S. workers, college scholarships for low-income students in mathematics, engineering, andcomputer science programs, and the general administration and enforcement of the H-1B. Colleges, universities, and nonprofit research institutions are exempt from payment of the new fee.
Layoff Protection for U.S. Workers.
The new law is designed to protect against the displacement of U.S. workers by H-1B nonimmigrants in several ways. All "H-1B dependent" employers must make new attestations regarding the employment of H-1B employees. "H-1B dependent" employers are defined as those that (1) have 25 or fewer full-time equivalent employees in the U.S. and employ more than seven H-1B nonimmigrants; (2) have 26 to 50 full-time equivalent employees in the U.S. and employ more than 12 H-1B nonimmigrants; or (3) have more than 50 full-time equivalent employees in the U.S., and employ at least 15 percent H-1B nonimmigrants. It is important to note that certain H-1B nonimmigrants are exempt for purposes of the attestation requirements. These include H-1B nonimmigrants who hold a master's degree or higher in a field related to the prospective H-1B employment or those who receive wages and similar compensation at an annual rate equal to at least $60,000.
H-1B dependent employers must now attest on the Labor Condition Application ("LCA") that they have not displaced, and will not displace, any U.S. worker employed by them within the period beginning 90 days before and ending 90 days after the filing of any visa petition based on the LCA. In addition, the employer must attest that they will not place the H-1B nonimmigrant with another employer where there exists indicia of an employment relationship between the H-1B employer and the other employer, unless the petitioning employer has inquired and has no knowledge of the fact that the other employer has displaced or will displace a U.S. worker within the period beginning 90 days after the date of the H-1B employee's placement with the second employer. Furthermore, the H-1B dependent employer must attest that they have taken good faith steps to recruit U.S. workers using industry-wide standards, have offered the prevailing wage during such recruitment, and have offered the position to any U.S. worker who applies who is equally or better qualified than the H-1B nonimmigrant.
Increased Enforcement and Penalties.
The new law provides for new fines and penalties ranging from $1,000 to $35,000, for failing to meet the attestation requirements described above. The fines range in accordance with the severity of the violation. It is clear that while Congress did increase the number of H-1B nonimmigrants temporarily, Congress also intended to protect the American labor pool and punish employers who do not respect the law.
B-Ware!
Employers must not attempt to circumvent the new requirements. Many foreign nationals enter the United States with B nonimmigrant visas. The B-2 visa may be used by tourists visiting the United States for vacation or to visit friends and family. The B-1 visa may be used by business visitors who are entering the United States to engage in non-employment related business activities.
A foreign national who enters the United States with a B visa and engages in nonpermissible activities may face severe penalties including: fraud allegations; removal (deportation) proceedings; accumulating unlawful presence; and bars from returning to the U.S. Thus, employers should not encourage foreign personnel to enter the U.S. with a B visa to work -- even for a very short period of time.
CONCLUSION.
The new H-IB law is complex. As new regulations are published, we will keep you updated. We recommend an audit of the employees with H-1B visas and the public files to ensure compliance with the new provisions of the law.