Immigration Articles

H-1B CAP – Should I, or Should I Not File?

In the backdrop of the Executive Orders and H.R. 670 (H.R.670 – High-Skilled Integrity and Fairness Act of 2017), we have received several questions over the past few weeks regarding the filing of H-1B Petitions for this fiscal year (April 1, 2017).

Several of you want to know if salaries are going to spike for H-1B Visa holders and if the program as you know it may end?

Let’s look at the positive first – as of now, no EO, or Bill has actually been issued or enacted into law with respect to the H-1B Visa Program. The travel restrictions on citizens from the List of 7 countries do not affect the filing of H-1B petitions for an October 1st start date.

The sponsor of H.R. 670 is the highest ranking House Democrat – Representative Zoe Lofgren (D-CA), whom I had the honor of meeting way back on September 13, 2000. Prior to serving in Congress, Representative Lofgren was an Immigration Attorney and a member of AILA – she practiced immigration law as a partner in the firm of Webber & Lofgren and also taught immigration law at University of Santa Clara School of Law. She is also former chair of the Subcommittee on Immigration and Border Security.

I still remember Representative Lofgren placing a gentle hand on my shoulder (midway into my prepared pitch on the need for H-1B reform and an increase in overall numbers), and saying, “you’re preaching to the choir, young man!” So, to see the negative coverage that her Bill has received in the media is at best disheartening.

The Bill has extraordinary provisions that will actually help H-1B Visa holders and I believe the Bill should be embraced by the nonimmigrant community. Let me try and summarize the top features of the Bill:

  • Section 2 -Significantly increase the number of Immigrant Visas made available to highly subscribed countries namely, China, India, Mexico and the Philippines
  • Section 3 – There is no provision that automatically raises the salaries for “all” H-1B nonimmigrants. It is restricted to certain Computer and Mathematical Occupations (Group 15–0000); however, in Section 5, the Secretary of Labor is required to first determine the prevailing wage for each occupational classification by metropolitan statistical area in the United States. This will most likely result in a new median wage. An exemption is also applicable to non-profit institutions where the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment
  • Section 4 – Requires employers to share copies of nonimmigrant petitions (as long as the request is made within 3 years of the approval) with their employees and eliminates/prohibits liquidated damages provisions in contracts with H-1B nonimmigrants
  • Section 6 – Eliminates the H-1B CAP for certain cases and provides for market–based allocation of visas where the employer can show the salary is 200% of the Level (Levels 1, 2, or 3) set for that particular position; the level is further lowered to 150% and 100% for subsequent extensions.
  • Section 7 – 20% of the H-1B quota will be reserved for employers with 50 or fewer full-time employees, including parent, subsidiary, and other affiliated entities. However, the employer must include an attestation that the beneficiary will not be placed for more than 30 days at a third party worksite
  • Section 8 – Clarifies “dual intent” limitation for students and allows them to pursue Green Card applications based on employment. It also further expands the validity of a petition when changing employers.

While it is hard to predict if this Bill will finally be approved and become Law, it offers some real benefits. It may not be too late to write to Representative Lofgren and seek changes to the underlying Bill.

Our recommendation is to treat this year like any other and continue to file H-1B CAP subject petitions for legitimate nonimmigrant positions. Instead of living in anxiety and being ruled by rumors, why not lobby Congress for the provisions that you deem necessary and essential? Remember, a past President who said, a”government of the people, by the people, for the people, shall not perish from the earth?!”

About kidambilaw

We are a Business Immigration law firm based in metro Bridgeport area of CT. We serve clients from all over the world.

Discussion

Comments are closed.

%d bloggers like this: