• Immigration Impact of the FY 2016 Budget Bill
  • January 26, 2016
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Negotiators in the U.S. House of Representatives have reached agreement on a FY 2016 appropriations bill that would impose stricter security requirements on Visa Waiver Program (VWP) travelers and significantly increase the fees that high-volume H-1B and L-1 employers must pay. The bill would reauthorize the EB-5 Regional Center and E-Verify programs with no substantive changes but through September 30, 2016 only.

    Key immigration provisions of the bill are summarized below.

    Tougher Security Standards for Visa Waiver Program Travelers

    The bill includes tougher passport requirements and other security standards for the Visa Waiver Program, which the House passed in a separate bill last week.

    The bill would require all VWP travelers to present an e-passport with a biometric-enabled chip by April 1, 2016. It would also require all VWP countries to put in place mechanisms to validate these e-passports by October 1, 2016. VWP travelers who do not currently hold an e-passport would need to apply for a new passport in order to meet this requirement.

    The bill would prohibit VWP travel by those who, since March 2011, have traveled to Iraq or Syria, any other country designated by the Secretary of State as a state sponsor of terrorism (i.e., Iran and Sudan), or any other country designated as a country or area of concern by the Secretary of Homeland Security. This same bar would be imposed against nationals of VWP countries who are also nationals of a country of concern. It is not yet clear how these restrictions would affect foreign nationals who currently have a valid ESTA authorization for VWP travel.

    Foreign nationals prevented from using the VWP would have to appear for a personal interview and obtain a visa stamp at a U.S. consulate overseas before traveling to the United States for business or tourism. There would be a limited exception for those who traveled to a country of concern in the course of military or government service on behalf of a VWP member country.

    Visa Waiver Program member countries would be subject to additional security and information-sharing standards and could be suspended from the program for failure to comply.

    The additional obligations imposed by the bill, and the authority given to the Department of Homeland Security to broaden the list of countries of concern and suspend noncompliant VWP member countries, could lead other countries to impose reciprocal restrictions on U.S. citizens. This could mean that a U.S. citizen who has traveled to or has a dual nationality in a country of concern could be required to obtain a visa for travel to a VWP member country as a result.

    Significant Increases in Fees for High-Volume H-1B and L-1 Employers

    The H-1B and L-1 Border Security Fee, which expired on September 30, 2015, would be doubled and imposed on both initial H-1B and L-1 filings and extensions.

    Employers with 50 or more employees in the United States, more than 50 percent of whom are in H-1B or L-1 status, would pay a $4,000 fee for each covered H-1B petition and a $4,500 fee for each covered L-1 filing, in addition to other filing and application fees. Covered employers would not only be required to pay the fee with each new H-1B and L-1 petition or application, but with each application for an extension of stay, though it is not yet clear how USCIS and the Department of State would implement this new requirement.

    The fee would remain in place until September 30, 2025 and would fund several federal government programs, including a biometric exit system for foreign travelers to the United States.

    Reauthorization of the EB-5 Regional Center Program

    The bill would reauthorize the EB-5 Regional Center Program through September 30, 2016. It would make no substantive changes to the immigrant investor program, despite lengthy debate over the last several months. This means that current EB-5 investment thresholds and other program requirements will remain in place for another year. But the truncated reauthorization sets the stage for Congress to resume debate on tougher restrictions and higher investment levels for the entire EB-5 program for FY 2017 and beyond. Fragomen will continue to take an active role in EB-5 policy discussions.

    Reauthorization of E-Verify and Other Immigration Programs

    The E-Verify employment eligibility verification program would be reauthorized through September 30, 2016, as would the Conrad 30 Waiver Program for foreign physicians and the Non-Minister Religious Worker Program.

    H-2B Cap Relief for Returning Workers; New Wage Requirements

    The bill would revive a cap exemption for H-2B “returning workers.” A foreign national who was counted against the 66,000 H-2B cap in FY 2013, 2014, or 2015 would not be subject to the cap in FY 2016. A similar cap exemption was in effect for several years in the past, but expired at the end of FY 2007.

    H-2B employers would be subject to revised wage requirements. Employers would be required to pay workers a wage that is higher than (1) the actual wage the employer pays to other employees with similar experience and qualifications in the position and geographic area where the H-2B worker will be employed; or (2) the prevailing wage for the occupation in the geographic area of employment. Private wage surveys would be accepted. Under current law, H-2B employers must pay the higher of the DOL-determined prevailing wage or the applicable federal, state or local minimum wage.

    Employers in the seafood industry would be given greater flexibility to determine the employment start dates of foreign workers with an approved H-2B petition, but would be required to conduct additional recruitment and offer positions to U.S. applicants if the employer brings approved H-2B employees into the United States 90 to 120 days after the employment start date specified in the petition.

    What’s Next for the Appropriations Legislation

    The House is expected to vote on the budget bill later this week, followed by a vote in the Senate. Meanwhile, Congress is expected to extend a temporary stopgap measure until December 22 to allow time for the votes to take place.