SUMMARY OF HATCH-SCHUMER DEAL

A couple of days ago I reported about the Hatch-Schumer Deal going through the Senate judiciary committee. Below please find the summary regarding provisions involving H-1B visas courtesy of my colleague Greg Siskind:

Section 4101 changes. The language creates a new concept of having a base H-1B allocation for each fiscal year and then a possible addition to that base number depending on how strong demand is for H-1Bs. The cap will float between 115,000 and 180,000 depending on market conditions.
The base cap is 115,000. The cap can rise based on the following formula:
- If the cap is hit before day 45 then 20,000 more numbers will be made available beginning on day 46
- If the cap is hit between day 46 and 60, then 15,000 more numbers will be made available on day 61
- If the cap is hit between days 61 and day 90, then 10,000 more numbers will be made available on day 91
- If the cap is hit between day 91 and day 275, then 5,000 more numbers will be made available on day 276 The cap can also be lowered based on the following formula:
- If the number of approved petitions is at between 5,000 and 9,999 fewer than the base allocation for that fiscal year, then the base will decrease for the next year by 5,000
- If the number of approved petitions is at between 10,000 and 14,999 fewer than the base allocation for that fiscal year, then the base will decrease for the next year by 10,000
- If the number of approved petitions is at between 55,000 and 19,999 fewer than the base allocation for that fiscal year, then the base will decrease for the next year by 15,000
- If the number of approved petitions is more than 20,000 fewer than the base allocation for that fiscal year, then the base will decrease for the next year by 20,000

Changes Section 4102 regarding work authorization for H-4s.
Previous version only gave EADs to H-4s if their countries reciprocated rights to US employees. New language gives DOS discretion on this issue.

The non-displacement language in Section 4211 is modified and no longer applies to all employers. “For an H-1B skilled worker dependent employer” that is not an H-1B dependent employer, the employer cannot have displaced and will not displace a US worker in the 90 days before and after the filing of the H-1B. H-1B skilled worker dependent employers aren’t subject to the provision unless the employer is filing the petition with the intent or purpose of displacing a US worker from the position to be occupied by the beneficiary of the petition or workers are displaced who provide services at government work sites or are public school teachers. In the case of applications filed by H-1B-dependent employers, the employer did not displace and will not displace a US worker employer by the employer during the period 180 days before and after the filing of the H-1B.
“H-1B Skilled Worker Dependent” means an employer who employs H-1Bs in the US in a number greater than 15% of its full-time equivalent workers in the US employed in jobs in O*NET Job Zone 4 and Job Zone 5. H-1Bs who are intending immigrants don’t count in making this determination. The Hatch amendment makes changes to S.744’s H-1B recruiting requirements. The amendment increases recruiting requirements by adding a provision that says an employer must take “good faith steps” to recruit US workers using procedures that meet industry-wide standards and offering compensation at least as great as that required to be offered to H-1B non-immigrants. The DOL web site recruiting is still required and an additional requirement has been added to require posting positions on a State labor or workforce agency web site.
 There is a significant change in the advertising rules. In the original S.744, the employer must have offered the job to any US worker who applied and is “equally or better qualified” for the job for which the non-immigrant is sought. Now, this requirement only applies to H-1B skilled worker dependent employers. Modifies the rules that exempt counting certain employees from the H-1B dependency count if an employer has filed green card application. Previously, covered employers had to file I-140s for not less than 90% of the people for whom an employer filed a labor certification during the 1-year period ending on the date the employer filed an application for a labor certification for the worker. Labor certification cases pending for longer than a year would be treated as if the employer filed an immigrant status petition. The language is modified and a “covered employer” is an employer that has filed I-140s for not less than 90% of current employees who were the beneficiaries of labor certifications that were approved during the 1-year period ending 6 months before the filing of an application for which the number of intending immigrants is relevant.

A new Section 4225 is added and is entitled “Transparency of High-Skilled Immigration Programs.”

The new Bureau of Immigration and Labor Market Research shall submit an annual report to Congress providing data on H-1B beneficiaries and employers.  A similar report on L-1s is to be prepared annually. An additional annual report is to be prepared describing the methods employers are using to meet the good faith recruiting requirements.

Section 4236 is modified to state that the non-displacement provisions do not apply to petitions filed on behalf of existing employees.

There is a new Section 4237 entitled “Portability for Beneficiaries of Immigrant Petitions.”

Changes the adjustment portability rules. Regardless of whether an employer withdraws an EB-1, EB-2 or EB-3 petition, the petition shall remain valid with respect to a new job if the beneficiary changes jobs or employers after the petition is approved and the new job is in the same or a similar occupation for which the petition was approved. Current law requires the petition to be pending 180 days before portability kicks in. The employer’s legal obligation with respect to the petition shall terminate at the time the beneficiary changes jobs or employers.

DOL shall develop a method for enabling workers to verify that a new job is in a same or similar occupation.

In a very important change, concurrent adjustment applications are available even if a visa number is not available. In such a case, a supplemental fee of $500 will be collected. Applicants filed under this provision cannot be approved until a visa number becomes available.

SB744 GETS OUT OF JUDICIARY

Good news, the immigration reform bill SB744 got out of the Senate judiciary committee yesterday with a few wonderful amendments. 

One great amendment included adding the dual intent language to students (F-1), exchange visitors (J-1) which includes foreign doctors, E, O, P, V or W. 

It also allows for a waiver for people previously removed in some cases. 

There was a settlement between Senators Hatch and Schumer on H-1B cap - to go up to 180,000 based on market demand/need. 

Also, increased portability for people applying for employment-based green cards and other provisions which are mostly positive. 

Now the vote... 

H-1B AMENDMENTS TO THE IMMIGRATION LAW DO NOT PASS JUDICIARY COMMITTEE

Last week I reported on a number of proposed changes to the H-1B visa rules that are part of the new immigration law proposal by the Gang of Eight.
The discussions were part of the Senate Judiciary Committee’s markup of the bill. Senators pitched several amendments, including positive ones such as from Sen. Ted Cruz (R-Tex.) to increase the limit five-fold to 300,000, after he called the legislation as a “a step in the right direction" but not nearly enough even with the cap of 180,000 being “arbitrarily low.” However, this amendment was voted down 15-4 by the committee.
There were also amendments by Sen. Orrin Hatch (R-Utah), calling to ease the extra requirements for H-1B employers this new bill would impose, saying the U.S. cannot supply enough skilled workers, but this also feel through.
So right now the original proposals is staying in the bill markup.

HIGH TECH COMPANIES PUSH FOR H-1B AMENDMENT IN SENATE BILL

Another clash between two interest groups in Washington, D.C. as the debate over immigration reform continues.
What is going on with mark-ups in the Senate on the immigration reform bill is that High-tech companies that need to bring more skilled workers to the U.S. are pushing for more concessions. The main issue of contention between the high tech groups and the unions is proposals by one of the bill's sponsors Sen. Dick Durbin (D-IL) to add a number of restrictions on the program first, including trying to recruit for U.S. workers first. While the overall goal of the legislation is good, and will increase the number of H-1B visas, the price to pay for these amendments may be too high for many companies that use this visa to recruit talent, especially in IT, computer software, engineering, and other positions in shortage.
However, the labor unions claim that Silicon Valley had already gotten enough in the legislation and further changes risked chipping away at protections for U.S. workers. This argument is ridiculous because unemployment in these occupations is generally less than 3% which is nothing more than people moving between jobs in normal economical terms. The reason that Sen. Durbin added these restriction to the bill in the first place was to garner wide support especially from the unions for passage of the bill.
Republican Senator Orrin Hatch of Utah has stepped up to help the tech companies, proposing many amendments to help ease the requirements of the H-1B visa program, not increase them. He may be a swing vote on the immigration bill so the bill sponsors would like to get his support, and Utah is becoming a major high-tech employer.
The good thing about the bill would be that the H-1B cap would be raised from the current 65,000 annually to 110,000, with the potential to adjust upward to 180,000 depending on how many visa applications are received and what the unemployment rate is. However, High-tech companies say the unemployment rate should not be a factor because it might not reflect actual demand for skilled workers, which especially in IT has historically been very low. There is also concern that the companies would have to recruit U.S. workers first, a condition that is not required under the law right now. It makes sense for H-1B dependent employers which are those who have a large percentage of H-1B workers but not on most employers whose H-1B employees rate is less than 15%.
Other positive provisions in the bill exempt advanced degrees STEM graduates from U.S. schools, from annual limits on the permanent resident visas and creates a new visa for foreign entrepreneurs coming to the U.S. to start companies. Overall the bill is good but the restrictions on H-1B employment should go away.

USCIS FINISHED ENTERING H-1B RECEIPTS FOR FY2014 - IS SENDING REJECTION NOTICES

AILA reports that USCIS Service Center Operations indicated that as of Friday, May 10th all data entry was completed and receipt notices have been sent. If receipt notices are not issued or received, it probably means that the case was rejected or not selected in the lottery for H-1B cases for FY2014.
Rejection notices have also started to be sent out and they request to allow until the end of May for delivery of receipt or rejection notices.

CBP DOES AWAY WITH I-94S

U.S. Customs and Border Protection (CBP) started implementing the automated version of Form I-94, Arrival/Departure Record, at air and sea ports of entry. Implementation will continue across the nation through May 21, to include air and sea ports of entry that support international arrivals.
CBP will stop giving away I-94s and instead stamp each foreign national's passport with the entry date, admission status and expiration date listed on the admission stamp and enter all their data into the electronic system. The individuals will be able to access their electronic Form I-94 by visiting www.cbp.gov/I94 and print out their I-94s.
As evidence of lawful admission submitted with a benefit request, USCIS will accept the electronic Form I-94 in paper format obtained from CBP’s website as equivalent to the paper versions of Form I-94. In lieu of submitting the electronic Form I-94 in paper format, USCIS will also accept photocopies of the passport pages that contain the individual’s biographical information, visa and admission stamp.
We'll have to wait and see how smooth this process will actually be...

SOME NON-CAP H-1B CASES TAKE 30 DAYS OR MORE FOR RECEIPTS

AILA is reporting that NCSC has indicated that non-cap H-1B and other Form I-129 receipting is taking 30 days or more.
AILA Liaison is raising the reported delay in receipting with service centers and Service Center Operations at USCIS HQ. This is a problem for visa extension, AC21 portability for H-1B cases etc. so it must be addressed very quickly - even E-Verify may not match if there is no new receipt.
I will update as I know more.
Another H-1B cap update as of today we have received all but a few of the H-1B cap case receipts and even a few approval notices for NON-PREMIUM H-1B cap cases! This is amazing speed from USCIS!