Update on Immigration Reform

The long-awaited Comprehensive Immigration Reform bill, S. 744, was introduced late last week.  It is a massive bill that includes changes to most of America’s visa programs, everything from boarder security to tourism and religious worker visas.

Overall, IEEE-USA was pleasantly surprised by the bill.  While it does include an unnecessary and significant H-1B increase, this problem is at least partially off-set by some good reforms to the H-1B and L visa programs, in addition to a needed expansion of the EB green card program.  These reforms should improve our immigration system while making it harder, although not impossible, for companies to use the H-1b to replace American workers with under-paid foreign workers.

Within the immigration system, S. 744 exempts anyone who has earned a Masters or PhD from an accredited American university in a STEM field from the EB visa cap.  Immigrants would still need to have a job offer and be sponsored by their employer, but would not need to go through the labor certification process, which will allow their EB applications to be approved more quickly.  This section of the bill will allow most international STEM graduate students to move directly from their student visa to a green card, without having to first get an H-1B.  The number of EB visas available to undergraduates will increase as graduate students are taken out of the line, and the EB country caps are eliminated, resulting in much shorter waits for all international students.  All EB categories should be current within five years.

Additionally, a new $500 fee has been attached to companies using the labor certification process.  This would be paid by any company trying to sponsor a non-STEM worker for a green card (STEM workers are exempt from labor certification).  Funds raised by this fee would be channeled into programs to improve American STEM education.

That’s the good news.  The bad news is that the H-1b visa cap is increased immediately from 65,000 to 110,000 annually, with an additional 25,000 H-1Bs for graduate students (up from 20,000).  The bill contains an escalator which will increase the base cap to 185,000 over time.  This is 125,000 more H-1bs than were available in 2012.  When you add in the existing exemption for non-profit research institutions (universities and hospitals, mostly) and new exemptions for graduate students and spouses of H-1B workers, the grand total of H-1bs available each year will be approximately 300,000, more than double the 2012 total (134,780).

S. 744 contains a number of reforms to the H-1B program, including:

·         H-1B workers have 60 days to find a new visas sponsor should they need or want to change jobs

·         The prevailing wage requirement is tightened to ensure H-1B workers are paid wages closer to American wages

·         Companies must post all jobs they wish to fill with an H-1B worker on-line with the Department of Labor for 30 days and hire any American with comparable qualifications to the proposed H-1b worker.

·         Companies must not displace American workers 90 days before or after hiring an H-1B worker.  H-1B dependent companies must not displace workers for 180 days before or after hiring an H-1B worker.

·         H-1B dependent companies may not outsource their H-1b workers to other companies.  Non-dependent companies may do so, but must pay a $500 fee per worker.

·         Companies with more than 50 employees cannot have more than half their employees using an H-1B or an L visa.  This rule is phased in over three years

·         H-1B dependent companies will pay higher fees for their visas

Reforms to the L-Visa include:

·         Tighter restrictions on outsourcing

·         Higher fees for companies using a large number of L visas

For both visas, the government will have greater investigatory and audit authority.  Fees for fraud and abuse will also be increased.

With most of these reforms, there are exceptions and limiting language in the bill, some of which greatly weakens the proposals.  But overall the reforms will make it harder to abuse the H-1B and L visas and help protect foreign and American workers.

S. 744 also authorizes dual-intent for international students.

IEEE-USA has learned that companies are lobbying Congress to weaken even these less-than-perfect reforms.  Companies also want the H-1B cap to be even higher.  We will be working with Congress over the coming weeks to improve the worker protections and make sure companies don’t further weaken the bill.