draft bill in the House of Representatives proposes changes for highly skilled worker visas. Congresswoman Zoe Lofgren developed the draft, titled "High-Skilled Integrity and Fairness Act 2015". The bill has received bipartisan support. Lofgren has been in negotiations with Congressman Issa and others regarding possibly co-authoring the bill; however, there is no concrete agreement or set date to introduce the bill.

GovTrack is a government website that publishes status reports pertaining to federal legislation, as well as information concerning representatives sponsoring the bill. GovTrack estimates that there is a 35% chance of the bill getting past committee and a 10% chance of it being enacted. Nonetheless, Lofgren is the lead Democrat in the House of Representatives on highly skilled worker issues and the elements of this draft bill could become the basis for future bills.

Under current law, US Citizenship and Immigration Services (USCIS) has per-country limits pertaining to the maximum number of employment-based preference visas that can be issued to citizens of any country in a fiscal year. These limits are calculated each fiscal year depending on the total number of employment-based visas available. No more than 7% of these visas may be issued to citizens of one country in a fiscal year. However, the per-country limit does not indicate that a country is entitled to the maximum number of visas each year; just that it cannot receive more than that number. The proposed bill would eliminate the per-country limit for employment-based immigrant visas in an effort to ensure that all workers are treated fairly and are subject to the same waiting times for visas.

The proposed bill would reform the H-1B dependent employer and eliminate the master's degree exemption. A 'H-1B-dependent employer' is an employer that meets one of three ratio standards between the employer's total workforce employed in the United States and the employer's H-1B non-immigrant employees.(1) H-1B-dependent employers are subject to attestation obligations regarding the displacement of US workers and the recruitment of US workers for all of their labour condition applications.

However, these additional obligations do not apply to a labour condition application if the application is used only for exempt H-1B non-immigrants. H-1B non-immigrants are 'exempt' if they earn at least $60,000 or have a master's degree or higher. The proposed bill would also change the wage exemption level to the 35th percentile above the median of the most recent national wage for computer and mathematical occupations, published in the Department of Labour's Occupational Employment Statistics. According to data issued by the Department of Labour in May 2015, this would equate to an annual wage of over $130,000.

Under current law, petitioning employers may file a H-1B petition no more than six months before the employment start date requested for the beneficiary. As such, USCIS begins accepting H-1B petitions for the subsequent fiscal year starting on April 1. Under the proposed bill, however, two tranches of H-1B visas would be available during the fiscal year, rather than all visas becoming available on October 1. This would help employers with the dilemma of projecting workforce needs for six to 18 months in the future.

The bill would also prioritise the allocation of H-1B visas, with preference given to employers that hire mainly US workers and then to H-1B dependent employers based on the wages paid to the beneficiary. For example, petitions at Wage Level 4 would be awarded prior to those at Wage Levels 3, 2 and 1. The bill would also set aside 20% of the annual allocation of H-1B visas for small and start-up employers (those with 40 or fewer employees).

Finally, under current law, foreign students must possess the present intent to leave the United States at the conclusion of their approved activities.(2) The proposed bill would allow F-1 students to possess 'dual intent' (ie, the non-immigrant also has the intent to immigrate to the United States in the future), so that they are not denied visas because they might intend to immigrate to the United States.

While the bill may not move forward as a freestanding measure through both chambers of Congress, it does shed light on factors that the US government is considering relating to visas for highly skilled workers.

For further information on this topic please contact Melissa Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (melissa@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

Endnotes

(1) 20 CFR 655/736 – "What are H-1B-dependent employers and wilful violators?"

(2) 9 FAM 402/5 Students and exchange visitors - F, M, and J visas, 9 FAM 402/5

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