If the U.S. Senate agrees that H-1B visas are needed to bring in skilled and talented foreign workers, particularly in the areas of science, technology, engineering and math (STEM), then it needs to revamp some of the provisions in the proposed immigration reform bill. Today the U.S. Senate starts to debate the proposed immigration law, The Senate Immigration bill, S. 744, titled the Border Security, Economic Opportunity, and Immigration Modernization Act (BSEOIMA). The debate on the bill is expected to go on for the next 2 weeks with the initial focus on border enforcement, but to include also a path to permanent resident status and citizenship, a new guest worker visa, changes to the family visa programs, as well as changes to the H-1B (specialty occupations) and H-2A (agricultural workers) programs. For the 844 page bill, there are over 300-400 proposals for changes that need to be reviewed and debated. The end result may look very different than what is out there today.

The way the bill is now written has the net effect of restricting the H-1B visa category and discouraging employers from sponsoring foreign workers.

The H-1B visa is for highly skilled workers for positions that require either at least a Bachelor’s degree in a specific field that relates to the offered jobs. For the most recent fiscal year, the demand for H-1B visas was so high that the number of available H-1B approvals was met within 5 days, leaving no more available until October 1, 2014. H-1B numbers are allotted for each government fiscal year starting on October 1.

While the proposed immigration reform bill concedes the need for more H-1Bs to bring in skilled workers by providing provisions to increase the number allotted each year, the proposed restrictions on this visa category will likely have a chilling effect on employers. These include:

1. Employers will need to use the DOL OES wages to determine the prevailing wage, or salary surveys approved by the DOL. The OES wages will only have 3 levels (versus the current 4 levels) and likely to cause employers to pay higher wages due to the formula set forth in the bill.

2. Employers will need to attest having conducting recruitment via an Internet posting for 30 days prior to filing an H-1B visa petition. The employer would be obligated to offer the job to any applicant who is “equally or better qualified.

3. The time period allotted during when a complaint can be lodged against H-1B employers under the Labor Condition Application (LCA) is extended from 12 to 24 months leaving the possibility of more complaints and investigations of employers. The DOL can also initiate them on their own.

4. All employers would be subject to the additional attestations regarding the LCA that are now only applicable to dependent H-1B employers (those with H-1B workers as a large part of workforce). These attestations relate to the non-displacement of U.S. workers – – that they have not and will not displace a worker within the 90 day period before and after filing an H-1B visa petition. However, employers would not be subject to these attestations if the number of U.S. workers employed in the same O*Net job zone as the H-1B worker have not decreased during the past one year ending on the date of the filing of the LCA with the DOL.

5. Dependent H-1B employers may not contract out employees to third-parties even when that is their business model.

6. Filings fees for H-1B and L-1 visas will increase for companies that use the programs a lot (if more that 50+ employees and more than 30%, and even more if over 50%).

The net effect of these proposals is to discourage employers from sponsoring foreign nationals for H-1B visas. If employers file H-1B visa petitions, they will need to weigh the need for the foreign national worker(s) against the following:

  • the possibility of having to pay a higher prevailing wage;
  • increased compliance obligations;
  • a wider window during which complaints can be filed;
  • the need to recruit for the position before filing the H-1B visa petition;
  • the risk that the DOL will determine that there was an equally or better qualified applicant and person requiring them to make a job offer to that applicant.

In addition, the time needed to prepare an H-1B visa petition will increase so significantly that this alone will be sufficient to deter employers from filing as it won’t allow a company to meet its immediate need of filling a specific position. If a company is forced to file for a prevailing wage with the U.S. Department of Labor because another approved survey doesn’t work for the offered position, it will need to account for the time it takes for the DOL to issue a prevailing wage, which is currently 6-8 weeks. Also, the 30 day recruitment period adds at least another month of processing time, but possibly longer if there is a period that will be needed to review resumes and interview applicants. No one knows if the DOL will review the recruitment results before allowing the H-1B visa petition to be filed, which would add further delay. Consequently, it is likely that process will take, at minimum, an additional 3-4 months to prepare the H-1B visa petitions before they can be filed. This is in addition to current 3-4 month processing time if a company does not pay the extra $1,225 filing fee to get the case adjudicated in 15 days.

There are many proposals to change these restrictive H-1B provisions that the Senate will be considering. Let’s hope that they see the need for change or these restrictions will become yet another notch in the invisible fence by keeping out highly skilled and talented workers in the U.S.

Posted by: Linda Rahal