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back to index backGLOBALtalk December,  2004

USA: Immigration Alert

Congress has included provisions in the Omnibus Appropriations bill to provide some relief from the H-1B cap, as well as some changes to the L-1 visa categories.  The President is expected to sign the legislation shortly.   The effective dates of the provisions are staggered, with new H-1B visas available within 90 days of signing. 

The following are some of the highlights of the immigration provisions:

H-1B visa: 
Creates a permanent exemption for graduates of masters and Ph.D. programs at US colleges and universities from the H-1B cap, up to 20,000 per year; permanently reinstates the dependent employer attestations; permanently reinstates the education and training fee (raising it to $1500 for employers with 25 or more employees and reducing it to $750 for employers with 25 or fewer employees); adds a new "fraud prevention and detection fee" on H-1B and L-1 petitions of $500; requires payment of 100% of the calculated prevailing wage (eliminating the 95% rule), but requires DOL to use surveys that include at least 4 levels of wages (this change applies to ALL categories for which prevailing wage is an issue, including permanent labor certification); reinstates and broadens DOL authority to investigate without a complaint, based on "reasonable cause," but provides  a safe harbor for technical or procedural failures based on good faith attempts to comply and a 10-day window to correct failures.

L-1 visa: 
Prohibits placement of L-1B visa holders at a third-party location where the employer does not control or supervise the employee or is in an arrangement to provide labor for hire and not in conjunction with the provisions of a product or service. 

The L-1 provisions also repeals the 6-months employment abroad provisions added by the spousal employment law in 2001, and requires all L-1 beneficiaries to have worked abroad for the related company for 1 year prior to transfer.  All provisions take effect 180 days after enactment.

Attached for further information are Questions and Answers regarding the L-1 Visa and H-1B Visa Reform Act of 2004 prepared by the U.S. Chamber of Commerce, to download, please click here (pdf file).

Source: Clara Mager and Reggie Pacis, Butzel Long - GAI

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