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.