• Senate Judiciary Committee Approves Immigration Reform Bill
  • May 24, 2013
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • After several weeks of hearings and mark-up, the Senate Judiciary Committee on Tuesday approved S. 744, the comprehensive immigration reform package, by a vote of 13 to 5. The bill now proceeds to the full Senate for debate, which is expected to begin next month.

    Of most significance to employers, the last hours of mark-up saw several amendments to the provisions of the bill affecting nonimmigrant workers. These are summarized below.

    The H-1B cap. The final version of the bill includes a higher H-1B cap baseline of 115,000 and a new formula that will allow for quota increases of 5,000 to 20,000 within a fiscal year if demand exceeds the cap and the unemployment rate for managerial, professional and related occupations is less than 4.5 percent.

    H-1B skilled worker dependency. Amendments to the bill introduce enhanced recruitment and non-displacement obligations for the “H-1B skilled worker dependent employer,” which is defined as an employer whose skilled workforce - comprising full-time equivalent employees in occupations within Zones 4 and 5 of the Labor Department’s O*NET database - is made up of 15 percent or more H-1B workers. Intending immigrants would not be included in the workforce calculation if their employer had filed permanent residence petitions for at least 90 percent of the labor certifications for which it received approvals within a given timeframe.

    Recruitment. Employers would be required to post H-1B jobs on a DOL website, engage in good faith recruitment using industry-wide standards, and offer compensation at least equal to that offered prospective H-1B nonimmigrants. DOL would be required to facilitate the posting of H-1B jobs on the websites of state workforce agencies (SWAs). H-1B skilled-worker dependent employers would be required to offer a job opening for which an H-1B worker is sought to any to any equally or better qualified U.S. worker who applies for the position.

    Non-displacement. An H-1B employer, other than one who is H-1B dependent or skilled-worker dependent, is prohibited from displacing a U.S. worker if the employer is: (1) filing an H-1B petition with the intent or purpose of displacing a specific U.S. worker from the position to be occupied by the beneficiary of the petition; (2) providing services to worksites operated by federal, state or local government employer entities that would direct and control the work of the prospective H-1B employee; or (3) a public school. H-1B skilled worker dependent employers would need to attest that they did not or would not displace a U.S. worker 90 days before or 90 days after filing an H-1B petition. The non-displacement period would remain 180 days before and after filing for dependent employers.

    Outplacement restrictions on H-1B dependent employers. The amendment bill retains the prohibition against outplacement by H-1B dependent employers, but clarifies that dependent employers who are nonprofit institutions of higher education, nonprofit research organizations and health care providers petitioning for physicians or other health care workers are not subject to the restrictions, though must pay an outplacement fee.

    H-1B spousal work authorization. The amended bill eliminates a provision that would have granted H-1B spousal work authorization only if the principal H-1B’s home country provided reciprocal benefits to similarly situated spouses of U.S. citizens. However, the bill allows the Department of Homeland Security, at the request of the State Department, to suspend spousal employment authorization for nationals of countries that do not provide reciprocal benefits.

    L-1B outplacement. The amendment prohibits the outplacement of L-1Bs if 15 percent or more of the employer’s full-time equivalent workforce is made up of L-1Bs, including intending immigrants. Otherwise, employers may not outsource or outplace an L-1B unless: (1) the worker is controlled and supervised by the petitioning employer; (2) the placement is not an arrangement to provide labor for hire; and (3) the employer pays a $500 STEM education and training fee.

    Covered employers. For purposes of the H-1B dependency and skilled-worker dependency calculations, intending immigrants are not included in the calculation if their employer is a “covered employer.” The amended bill redefines covered employer to mean an employer who has filed I-140 petitions for at least 90% of current employees who were beneficiaries of applications of labor certifications that were approved during the one-year period ending six months before filing the H-1B or L-1 petition for which the number of intending immigrants is relevant.

    Adjustment of status portability. The amended bill clarifies that, for purposes of adjustment portability, approved I-140 petitions remain valid even if withdrawn by the petitioning employer, provided that the adjustment applicant has a new job in the same or a similar occupational classification.

    Adjustment filing before visa availability. Under the amended bill, a foreign national would be eligible to file an adjustment application concurrently with an immigrant petition or at a later point whether or not a visa number is available. If a visa number is not available at the time the adjustment is filed, the principal applicant would be subject to a supplemental fee of $500; dependents would not be liable for the fee.

    Effective date. The provisions of the bill would affect all petitions and applications filed on or after the date of enactment, but the H-1B recruitment and non-displacement provisions would not apply to extensions or other petitions or applications filed on behalf of existing employees.

    What Is Next for S. 744?

    The Senate immigration bill has several hurdles to overcome before it becomes law. The package approved by the Judiciary Committee yesterday is subject to additional changes on the Senate floor. If the bill is passed in the Senate, it will need to be reconciled with legislation passed by the House of Representatives. The House is at the early stages of crafting its own immigration bill, and it is not yet clear how much it will resemble the Senate’s approach. For an analysis of the Senate bill as introduced and of amendments approved last week, see Fragomen’s Client Alerts of April 18, 2013 and May 16, 2013.