Changes Made to H and L Visa Provisions by Omnibus Spending Bill

December 08, 2004

On December 8, 2004, President Bush signed an Omnibus Spending Bill that contained some new immigration provisions, and the revival of some old provisions. The changes are discussed below:

L-1 Legislation

here are two primary changes to the L-1 program. First, all employees who wish to apply for an L-1 visa must show at least one year of work experience with the company prior to the application, thereby eliminating the six-month requirement for companies with Blanket L petitions. This provision will be effective 180 days after enactment (6/6/05).

Additionally, the new law prohibits L-1B visas (specialized knowledge employees) to a foreign national who (1) will be stationed primarily, and will be controlled and supervised by an off-site, unaffiliated employer, or who (2) is a person coming to the United States pursuant to a contract labor agreement where the foreign national will be controlled or supervised by an off-site, unaffiliated employer. This new provision does not include foreign nationals who will be placed in connection with the provision of a product or service which requires specialized knowledge specific to the petitioner. This provision will also be effective 180 days after enactment (6/6/05).

H-1B Legislation

The H-1B legislation creates an annual cap exemption of 20,000 visas for individuals who have a Master's or higher degree from a U.S. college or university. Employers must now pay 100% of the prevailing wage, eliminating the 5% variance that was required previously. This provision takes effect 90 days after enactment (3/8/05).

Department of Labor Legislation

In addition to changing the prevailing wage requirements for H-1B visas, the Department of Labor has been ordered to provide wage surveys that reflect four wage levels in its wage survey. The new survey should reflect a broader range of education, experience, and levels of supervision than the previous two-tiered model. This provision takes effect 90 days after enactment (3/8/05), but there is no indication as to when a new wage survey will be produced. In the interim, Congress has provided some guidance on the implementation of new wage levels that practitioners may use.

The legislation also reinstates H-1B dependency provisions that had "sunset" in September 2003, and provides the Department of Labor with new or renewed investigative abilities. There are also renewed provisions that give employers a chance to correct good faith technical violations to forms, and that provide defenses to employers who have been found to be paying less than the prevailing wage.

New Fees

The filing fees for both H and L visas were changed in the bill. These new fees apply to all L-1 and H-1B visas, not simply the "carve out" H-1B visas addressed in this legislation.

First, for each new L-1 or H-1B petition, a $500 anti-fraud fee must be paid in addition to any filing fees. This fee also applies to any new petition, or any petition filed by a new employer on behalf of a person who has maintained H status and moved to a new position. This provision takes effect 90 days after enactment of the bill (3/8/05).

In addition, the filing fees for all H-1B petitions have been increased substantially. In addition to the anti-fraud fee and the application fee, employers must again pay a "training fee." These fees were previously required for H-1B filings, but this provision had "sunset" in September 2003. This fee has now been made permanent, and it has been increased to $1,500 per petition. If your company employs fewer than 25 full-time employees, the training fee is $750 per petition. This training fee MUST be paid by the employer. This fee went into effect immediately upon enactment of the bill.

Please note that each change requires some new data collection and reporting responsibilities for USCIS. This likely means that we will need to collect additional information from you in assembling these applications and petitions, as new application forms will likely be issued by USCIS.