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 > New Laws Affecting US Visas For Foreign National Employees in the H1B and L1 categories President Bush recently signed into law the Omnibus Appropriations Act for FY 2005, which includes changes to the H-1B (specialty occupation workers) and L (intracompany transferee) visa categories. This article is a summary of those changes. H-1B CHANGES 1. H-1B Cap Starting March 8, 2005, an additional 20,000 H-1B visas for fiscal year (2005) will be available to anyone who has earned a master's or higher degree from a U.S. institution of higher education. According to a U.S. Citizenship and Immigration Services (USCIS) press release, applications for these visas cannot be filed until that time. Thomas Esparza, Jr. will obtain more guidance soon from the USCIS on eligibility requirements and filing procedures. 2. H-1B Training Fee All H-1B petitions, except those that are exempt as described below, will require a training fee. This “training fee” will be in addition to the regular filing fee of $185. U.S. employers, including affiliates and subsidiaries, with more than 25 full-time employees must pay a training fee of $1,500. Employers with 25 or less employees now pay a reduced fee of $750. These new fees are effective immediately. Money raised from these fees will be used to train American citizens, permanent residents and other U.S. workers, or provide for job training programs, scholarships or grants for mathematics, engineering or science enrichment courses. Of course, this training fee has been in effect for many years. Now, however, there are two different levels depending on the size of the employer. Employers who are exempt from the $1,500 or $750 training fee include: * institutions of higher education, * primary or secondary education institutions, * nonprofit entities related to an institution of higher education, * nonprofit research organizations, * nonprofit entities engaging in an established curriculum-related clinical training, and * governmental research organizations. * Also exempt from the new training fees are a. second or subsequent requests for extensions of stay filed by the same employer (regardless of whether the employer was or would be required to pay the training fee for the initial petition or first extension), and b. amended petitions not containing a request for an extension of stay or to correct a USCIS error. In addition, for those who can afford it, premium processing remains an option for all H-1B petitions For an additional $1,000, USCIS will process the petition within 15 calendar days. 3. Fraud Prevention and Detection Fee Separate and apart from the fees discussed above, effective March 8, 2005, a new $500 Fraud Prevention and Detection Fee must be paid by a. all employers filing an initial petition for H-1B classification or b. those seeking to change to a new employer. There are no exceptions to this fee, other than for petitions to amend or extend a beneficiary's H-1B status with the same employer. 4. H-1B Prevailing Wage Level Also beginning March 8, 2005, the salary offered on all H-1B petitions must be 100% of the prevailing wage or the actual wage, whichever is higher. Previously, employers could pay H-1B workers 95% of the prevailing wage. Good news is that the new rules require the Labor Department to revise their wage surveys to reflect four levels of wages commensurate with experience, education and level of supervision. This will allow an employer more flexibility in setting wage rates than with the two levels currently used. L-1 Intra-company transferee CHANGES 1. Fraud Prevention and Detection Fee Effective March 8, 2005, a new $500 Fraud Prevention and Detection Fee must be paid by all employers: * seeking a beneficiary's initial grant of L-1 classification or * those seeking to change to a new employer. There are no exceptions to this fee, other than for * petitions to amend or * extend a beneficiary's L-1 status with the same employer. 2. Qualifying Time for L Visa Petitions Beginning June 6, 2005, foreign workers will no longer be eligible for an L-1 visa under a "blanket L" petition if they have worked abroad for six months. Instead, all foreign nationals will need to have been employed for at least one year outside of the U.S. by an employer with a qualifying relationship to the petitioning employer in order to qualify for L-1 visa status. 3. Offsite Employment of L-1B Specialized Knowledge Workers For L-1B (specialized knowledge) petitions filed on or after June 6, 2005, L-1B workers can no longer work primarily at a worksite other than that of their petitioning employer if their work will either be controlled and supervised by a different employer, or if the offsite arrangement is simply to provide labor for hire, rather than in connection with the employee's specialized knowledge of a product or service of the petitioning employer. These offsite restrictions will apply to all L-1B petitions, including initial petitions, extensions and amended petitions for workers currently in L-1B status. In Related News... Increased Waiting Time for Visas for Certain Employment-Based Petitions Although unrelated to the legislation signed by the President, the U.S. State Department announced this morning that visas for employment-based third preference petitions (for skilled workers, professionals and other workers) have become backlogged for individuals from India, China-mainland born and the Philippines. Visas are now available for these individuals only if their petitions were filed on or before January 1, 2002. Visas for petitions filed after that date will only become available as the government begins to reduce the backlog. All other employment-based categories remain current. The information contained in this article is not intended or designed to take the advise of an attorney. No warranty express or implied is made as to the validity of the information due to the fact that changes in immigration law and procedure occur almost daily. Please see Mr. Thomas Esparza, Jr. A Professional Corporation, Board Certified Specialist in Immigration and Nationality Law in Austin, Texas for additional information. Mr. Esparza does answer his emails but prefers to consult with potential clients in the privacy of his office where he can make a detailed analysis and strategic plan for each case. Thomas Esparza, in 1985, was the second Hispanic to become Certified in immigration and nationality law. After having served Travis County as a Justice of the Peace, he dedicated his career to immigrants and their needs. He owes his success to his faith in God and the guidance of his parents, Dr. Thomas Esparza, Sr. and Esther LaMadrid Esparza. He is the proud father of the children, teenager Alex and twin daughters Helena and Carina. He is married to the former Minerva Gonzalez of Bryan, Texas. |
1811 South First Street . Austin, Texas 78704 | Phone (512) 441-0062 | Fax (512) 441-0725 | Email tom@tomesparza.com Copyright © 2007 The Law Office of Thomas Esparza, Jr. A Professional Corporation. Board Certified Specialist. Celebrating over 30 years of experience! |
