An H-1B and L-1 Visa Reform Act has been reintroduced in the Senate. This legislation was previously introduced in the Senate in 2007 but failed to move in the Senate at that time. The Act was re-introduced by Senator Dick Durban from Illinois and Senator Chuck Grassley from Iowa. Some of the highlights of provisions contained in the Act include:
- Making all employers (including colleges, universities and other organizations currently exempt from the H-1B quota) H-1B dependent and eliminating the exemption for H-1B dependent employers that currently employ exempt H-1B nonimmigrants who either possess a Master’s or higher degree or are offered a salary in excess of $60,000. The Act would require all H-1B employers to make a good-faith attempt to recruit equally or better qualified U.S. workers than the H-1B nonimmigrant and prohibit H-1B employers or their clients where the H-1B nonimmigrant is placed from displacing similarly situated U.S. workers by H-1B nonimmigrants.
- Prohibiting employers from placing “H-1B only” advertisements.
- Prohibiting employers from petitioning for additional H-1B and L nonimmigrants if more than 50% of their employees are H-1B or L-1 nonimmigrants.
- Permitting the U.S. Department of Labor (DOL) to initiate investigations without a complaint and without the DOL Secretary’s personal authorization.
- Authorizing the DOL to review Labor Condition Applications (LCA) for fraud prior to approving the applications.
- Allowing the DOL to conduct random audits of any company (including colleges, universities and other employers exempt from the H-1B quota) that uses the H-1B program.
- Requiring the DOL to conduct random annual audits of companies (including colleges, universities and other employers exempt from the H-1B quota) who employ large numbers of H-1B nonimmigrants.
- Providing safeguards for H-1B and L-1 nonimmigrants so that they know their rights under the law including wage rates and access to benefits.
- Instituting a process to investigate, audit and penalize L-1 visa abuses.
- Restricting the L-1B specialized knowledge category.
- Requiring employers to pay the prevailing wage and applicable benefits to L nonimmigrants.
While the Act would increase enforcement and modify wage requirements, it would not eliminate the L or the H-1B program or change the numerical cap of H-1B visas available to petitioning employers. When this Act was introduced in the Senate in 2007, it did not move in the Senate due in part to Republican objections to the legislation. However, parts of the Act were included in Comprehensive Immigration Reform legislation which was also introduced in 2007 but failed to pass Congress. It is assumed that Comprehensive Immigration Reform legislation will again be introduced in Congress later this year. Therefore, this Act may again be included in Comprehensive Immigration Reform legislation either in whole or in part. However, there is a greater likelihood that more (if not all) parts of this legislation will be contained in future Comprehensive Immigration Reform Legislation due to the fact that it appears that the Democratic leadership in Congress supports this legislation.
Legislation was also introduced in the Senate last year which would have increased the H-1B User fee from $1,500 to $5,000. Colleges, universities and other organizations exempt from the current H-1B User fee would not have been exempt from the additional $3,500 User Fee under the proposed legislation. Although this legislation did move in Congress last year but ultimately did not pass Congress, it is assumed that this legislation may be reintroduced by Senator Grassley later this year. However, as of this date, it has not been reintroduced in the Senate.