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Q: What is the H-1B Visa Reform Act of 2004?
A: Congress passed the H-1B Visa Reform Act of 2004 to amend the current Immigration and Nationality Act.
Q: When was the H-1B Visa Reform Act passed in Congress?
A: Congress passed the Act on November 22, 2004.
Q: Is the H-1B Visa Reform Act of 2004 enforceable law now?
A: No. President Bush must approve and sign the Act before it becomes law. Usually President has 15 days to approve it after receiving the document from Congress.
Q: How does the Act change the numerical limitations (cap) on H-1B visa?
A: The Act includes a section that exempts certain aliens from current numerical limitations on H-1B. Specifically an alien who has earned a Master's or higher degree from a U.S. institution of higher education is exempted from the current numerical limitations of 65,000. This exemption is capped at 20,000 per fiscal year.
Q: Is the exemption permanent or for fiscal year 2005 only?
A: It is permanent in the sense that Congress does not give an expiration date.
Q: When will the new H-1B exemption section take effect?
A: The exemption will take effect 90 days after the date of enactment.
Q: Does the H-1B Visa Reform Act change the fee requirements for employers to file H-1B petition for alien workers?
A: Yes, the Act modifies INA § 214(c)(9) by removing the sunset provision on the employer fees and making the fees permanent. This section also raises the fee for each petition from $1,000 to $1,500. Employers with no more than 25 full-time employees employed in the U.S. will only be responsible for ½ of the fee amount.
Q: When will the new employer fee requirement take effect?
A: It takes effect when the president sign the Act into law..
Q: Does the H-1B Visa Reform Act add other new fees?
A: Yes, the Act adds a new $500 fraud fee. Such fee will be in addition to other fees and will apply to employers filing either an initial petition for an H-1B or L visa or for a change of status petition.
Q: Does the fraud fee apply to H-4 dependants?
A: No, the fraud fee will be imposed only on principal aliens.
Q: When does the fraud fee requirement take effect?
A: The fraud fee section of the H-1B Visa Reform Act takes effect on the date of enactment. However, the fraud fee imposed applies to H-1B petitions and visa applications filed 90 days after the date of enactment.
Q: In addition to the filing fee, what is the total amount of statutory fees an H-1B petitioner has to pay?
A: After the new fee requirements take effect, the total amount of H-1B statutory fees will be $2,000 for employers with more than 25 full-time employees employed in the U.S, or $1,250 for employers with no more than 25 full-time employees employed in the U.S. In cases of premium processing, an additional statutory fee of $1,000 should be added.
Q: Does the H-1B Visa Reform Act change requirements regarding non-displacement attestation on the LCA by H-1B dependant employers?
A: Yes, the Act makes permanent the requirement of a non-displacement attestation on the LCA by employers who are H-1B dependant or have committed a willful failure or misrepresentation during the preceding 5 years.
Q: How Does the H-1B Reform Act change the prevailing wage requirements?
A: The Act requires employers to pay 100% of the prevailing wage, instead of the current 95%. However, this section also mandates that where the DOL uses or makes available to employers a governmental survey to determine prevailing wage, such survey shall provide 4 levels of wages commensurate with experience, education, and the level of supervision. If a 2 level wage survey is used, this section provides a formula for calculating the 2 additional intermediate levels.
Q: Does the H-1B Visa Reform Act give more investigative power to Department of Labor (DOL)?
A: Yes, the Act reinstates and makes permanent the ability of DOL to initiate an investigation of an employer if there is reasonable cause that the employer is not in compliance with H-1B laws. The Secretary of Labor (or acting Secretary) must personally certify that reasonable cause exists and must approve the investigation. The investigation may be initiated for reasons other than completeness and obvious inaccuracies by the employer.
Q: Under the H-1B Visa Reform Act, can DOL initiate an investigation upon information of noncompliance?
A: Yes, the Act permits the DOL to conduct an investigation if it receives credible information from a known source likely to have knowledge of an employer's practices or conditions. The information must provide reasonable cause that the employer has committed a willful failure to meet a condition, or has committed a substantial failure to meet a condition that affects multiple employers.
Q: Will an employer be deemed noncompliance for minor violations?
A: Maybe not. The Act requires good faith compliance by employers. An employer is deemed to have complied with the H-1B requirements, notwithstanding a technical or procedural failure to meet such requirements, if there was a good faith to comply with the requirements. This good faith clause shall not apply if DOL has explained the basis of the failure or if the employer has been given time to correct the failure and has failed to do so.
Q: Will employers be punished for failing to pay the prevailing wage?
A: It depends. The Act provides that an employer will not be assessed fines or penalties for failure to pay the prevailing wage if he can establish that the manner in which the prevailing wage was calculated was consistent with recognized industry standards and practices.
(11/17/2004)
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