The Fiscal Year 2005 Omnibus Appropriations Bill was approved by both the House
and Senate on November 20, 2004. The Bill introduces many changes in the existing
provisions relating to work visas, such as: restoration of One-Year experience
requirement for L-1 Blanket entrants; re-institution of H-1B Fee and H-1B Dependent
attestations, Introduction of a new Anti-Fraud Fee on L-1s and H-1Bs; and opening
up more H-1Bs for certain applicants.
The Bill will become law only when it is signed into law by the President. Therefore,
none of the provisions of the bill will apply until it becomes law. Further, most
of the H-1B related provisions will be effective 90 days after the Bill is signed
into law, except certain provisions (related to fees) that will be effective immediately.
The L-1 provisions will not be implemented until 180 days after the signing of
the Bill into law. The key highlights of the Omnibus Appropriations Bill containing
the H-1B and L-1 Visa Reform are discussed below.
Changes in H-1B Visa Program
New H-1B exemption
The Bill throws up an additional 20,000 of the coveted H-1B visas. This news generated
a lot of excitement and our office has been flooded with calls enquiring whether
the FY 2005 H-1B cap has been raised. In fact, various newspapers and journals,
particularly in India, carried news reports that the H-1B cap has been raised
by 20,000. While it is true that the legislation has opened up more H-1B visas,
the caveat lies in the fact that these visas will be available only to certain
qualifying applicants, and then, they won’t be available until three months
after the Bill is signed by the President into law. These 20,000 new visas will
be reserved for foreign students who have earned Master’s or higher degree
from American universities or institutes of higher education. The annual cap will
remain at 65,000. The proposed 20,000 H-1B visas will be treated as an exemption
from the cap.
Additional H-1B Fees
Though the bill provides for relief to certain H-1B applicants from the H-1B cap,
this relief comes with an expensive price tag in the shape of reinstatement and
increase of the worker ‘retraining’ fee and the introduction of a
new anti-fraud fee.
Education and Training Fee: The Bill reinstates and increases the Education and
Training Fee. The employer-funded fee increases to $1500 (previously $1000), is
separate from, and in addition to the regular USCIS filing fee and the optional
$1000 premium processing fee. Employers with fewer than 25 full-time equivalent
employees will only be required to pay half of the fee, i.e., $750.
New Anti-Fraud Fee: The Bill also introduces a new $500 anti-fraud fee to be paid
by the employer at the time of initial H-1B or L-1 petitions.
Prevailing Wage Changes
The Bill also modifies Section 212(p) of the Immigration and Nationality Act to
require employers to pay 100 per cent of the prevailing wage. Previously the provisions
permitted 5% variance from the prevailing wage determinations for H-1B cases and
in the labor certification process. However, the good news is that the Bill also
mandates that where a governmental survey to determine prevailing wage (such as
the Online Wage Survey) is made available to employers by the Department of Labor,
such survey shall provide 4 levels of wages commensurate with experience, education
and the level of supervision. Alternatively, a formula will be provided to calculate
the 2 additional intermediate levels.
DOL Investigative Authority
The Omnibus bill also contains provisions expanding the Department of Labor’s
investigative authority to conduct an investigation if it receives credible information
providing reasonable cause that the employer has committed a willful failure to
meet a condition.
Changes in L-1 Visa Program
No subcontracting of employees
The Bill modifies the provisions to prevent an L-1B holder from being primarily
stationed at another employer’s worksite in the case where:
These changes will apply to initial, extended or amended petitions filed on or
after the effective date, i.e., 180 days after the President signs the Bill into
- The L-1B visa holder will be under the control and supervision of an unaffiliated
- The L-1B visa holder will be providing labor for the third party rather
providing a product or service involving specialized knowledge specific to
L-1 Blanket – one year work requirement
The Bill also strikes out the provision permitting the six-month requirement
of continuous employment abroad to receive L-1 status under an L-1 Blanket petition.
All visa applicants under the L-1 Blanket must once again meet the one year
requirement applicable to all other L-1 applicants.
$500 Anti-Fraud Fee
The Bill also introduces a new $500 anti-fraud fee to be paid by the employer
at the time of initial L-1 petition or a change of status application, in addition
to the regular USCIS filing fees. The fee will be imposed only on principal
alien. Visa applicants under an L-1 Blanket will also be required to pay the
fee at the U.S. Consulate.