The fiscal year 2016 Department of Homeland Security (DHS) Appropriations Bill funds the Government’s immigration provisions, among others, through September 30, 2016. It will saddle many immigration programs with harsh fees and tight restrictions; and will result in more visas in the H-2B temporary seasonal work program. The President signed the legislation into law on December 18. Below are some of the bill’s highlights.

Bill Summary

As U.S. citizens continually face new and emerging threats both domestically and globally, such as the recent attacks in San Bernardino, California, and Paris, the bill funds wide-ranging DHS programs and activities designed to secure the nation from all manner of threats. These include programs to facilitate the efficient flow of commerce, prevent terrorism, protect political leaders, secure the border, enforce and administer immigration laws, and prepare for and respond to disasters.

The bill provides robust funding for the Coast Guard to secure and safeguard ports and waterways, strengthens the Transportation Security Administration’s aviation security activities following the DHS Inspector General’s May 2015 discovery of security vulnerabilities, and  makes additional investments in border security technology to enable agents and officers to perform their jobs more efficiently.

Key Points & Highlights

  1. Reinstatement of the Public Law 111-230, which expired in September 30, 2015. Known as the “50/50 companies fee rule,” it required employers of 50 or more full- or part-time employees with 50 percent or more of their workforce on H-1B or L-1 visas to pay an additional filing fee of $2,000 (H-1Bs) or $2,250 (L-1s). The new fees are $4,000 for H-1B petitions and $4,500 for L-1 petitions. The new fees, which will fund border security, are effective immediately on all new petitions, extensions, L-1 blanket petition users, and change of status applications. They will remain in place through September 20, 2025. Any L-1 or H-1B petitions pending at the U.S. Citizenship and Immigration Services (USCIS) offices or being processed at a U.S. consulate will require the additional filing fee as of December 19, 2015, if the employer is a “50/50” one. Regulations from both the USCIS and the U.S. Department of State (DOS) will issue guidance on the new fees in the coming months.

Practice Tip:  As of now, when filing H-1B and L-1 petitions, employers should note that they are either subject to the new bill and insert the filing fee check with the petition, or note that they are not subject to the bill and are, therefore, not including the additional filing fee.

  1. Increased H-2B visa numbers for H-2B program. The bill also makes certain changes to the H-2B program. One change permits employers to hire foreign workers to come to the United States temporarily to perform temporary nonagricultural services or labor on a one-time, seasonal, peak-load, or intermittent basis.The bill provides:
    • flexibility for H-2B workers in the seafood industry as to when they can start working;
    • for use of previously impermissible private wage surveys to determine the prevailing wage for the H-2B worker;
    • an expanded definition of "seasonal" as 10 months;
    • limitations on the Department of Labor's ability to implement some aspects of the interim final rule; and
    • exemptions for H-2B returning workers from the 66,000 annual cap for FY2016.

Practice Tip: This program may provide relief to employers who cannot find qualified citizens or permanent residents to work. It is worth exploring as a means to hire qualified workers without the numerical cap previously imposed by law.

  1. Significant Revisions to the Visa Waiver Program (VWP), which permits eligible citizens of 38 designated countries to travel to the United States for up to 90 days for short-term business or pleasure without first obtaining a visitor visa at a U.S. consulate. To use the VWP, travelers must obtain Electronic System for Travel Authorization (ESTA) clearance. The following 38 countries are eligible to participate in the VWP: Andorra, Australia, Austria, Belgium, Brunei, Chile, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.

The new law prohibits citizens of VWP member countries from entering the program without a visa if they have visited (since March 1, 2011), or have dual nationality with certain countries of concern. The new law also imposes more stringent passport requirements on VWP travelers effective April 1, 2016. To date, the only countries of concern are: Iran, Iraq, Sudan, and Syria. The new law gives DHS the authority to designate additional countries of concern.

To enter the United States, VWP travelers will need to present an e-passport that is machine-readable and contains an electronic chip. Nationals from certain VWP member countries who have passports issued before October 26, 2006, have been able to use the VWP to enter without an e-passport. This will no longer be allowed after March 31, 2016. E-passports have an international e-passport symbol on their cover. If a national of a VWP member country does not have an e-passport on April 1, 2016, and they wish to travel to the United States thereafter, they will have to obtain a B-1 (business) or a B-2 (tourist) visa before traveling to the United States.

As of today, neither the DHS or DOS have issued any guidance on how the law will be implemented. We will issue updates as any guidance on this new law becomes available.

Practice Tips: Apply for an e-passport if you are a national of a VWP member country and will be traveling to the United States on or after April 1, 2016. Once you have the new e-passport, reapply for ESTA clearance as you now have a new passport. Due to recent world events, ESTA clearance can now take longer than 72 hours. If you are a national of one of the countries of concern, or have traveled to any of them since March 1, 2011, apply for a B-1/B-2 visa at the U.S. consulate in your jurisdiction to be able to enter the United States as a visitor.

Finally, the bill extended both the e-verify and EB-5 Investor programs through September 30, 2016. These programs were to end September 39, 2015, but given the uncertainty as to the outcome of the 2016 Presidential election, it was no surprise the programs were extended for economic and/or political reasons.