Dramatic Changes Envisioned to H-1B and L-1 Programs
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Ranking Member Dick Durbin (D-Ill.) reintroduced legislation, with bipartisan support, to reform the H-1B and L-1 visa programs. In preparation for the introduction of the legislation, the Senators have written to 10 major employers in the United States (including Amazon, Apple, Cognizant, Deloitte, Google, JP Morgan Chase, Meta, Microsoft, Tata Consultancy Services, and Walmart) asking why they filed for H-1B visas while laying off American workers.
The major thrust of the legislation is to restrict the outsourcing of work, limit companies from hiring employees on H-1B and L-1 visas to replace U.S. workers and to provide preference to those who are present in the United States and have degrees from U.S. universities to be the primary beneficiaries of the H-1B visa program. The legislation also rewards employers who file immigrant petitions for their employees on H-1B or L-1 visas.
For H-1B visas, the proposed legislation includes provisions to:
- Mandate higher H-1B wage requirements.
- Impose H-1B employers with statutory requirements to recruit U.S. workers for positions for which an H-1B worker is sought. H-1B employers will be required to post H-1B jobs on a DOL website.
- Require direct correlation between a foreign national’s education and the H-1B occupation.
- Impose a Three-year maximum period for H-1B beneficiaries (with some exceptions for those on track for an immigrant visa).
- Create a preference system for the allocation of H-1B visas that would weigh presence in the United States and those who receive degrees from U.S. universities almost to the exclusion of individuals outside the United States or degree from non-U.S. universities. Preference will also be given to employers who are deemed to have met “good corporate governance” parameters which include having E-Verify registration, 90% approval of H-1B petitions, and filing employment-based immigrant petitions for at least 90% of its H-1B employees.
- Restrict third-party placement of employees on H-1B visas – unless the employer obtains a waiver from the Department of Labor.
- Limit employers with 50 or more employees from employing more than 50% of their workforce in H-1B or L-1status.
- Allow a longer review period for the review and approval of the Labor Condition Application
For L-1 visas, the proposed legislation includes a provision for expedited L-1 visa petition processing at USCIS for companies with an approved L-1 blanket petition.
However, the proposed legislation imposes new onerous provisions that:
- Impose new wage requirements for L-1 employers. The pay requirements will mean that L-1 employees, employed for more than one year would have to be paid the highest of 1) Local prevailing wage for the occupation; 2) the median average wage for all workers in the occupation in the area of employment; and 3) the median wage for the occupation for individuals working at the Department of Labor’s Occupational Employment and Workforce System (OEWS) wage level.
- Create tougher eligibility standards for L-1B employees with stricter and more restrictive definition of L-1B specialized knowledge.
- Obligate L-1 employers to not replace a U.S. worker with an L-1 employee and also not displace a U.S. worker within 180 days before or after the placement of an L-1 worker.
- Limit the placement of L-1 employees at third-party worksites.
- Create additional restrictive requirements and obligations for companies seeking to transfer employees through “new office” L petitions.
The legislation also seeks to eliminate the B-1 in lieu of H-1B visas. The broad thrust of the legislation will grant the Department of Labor broad investigatory authority, including annual H-1B and L-1 compliance audits, with additional powers to impose significant penalties for violations.
Senators Grassley and Durbin have jointly introduced similar legislation periodically from 2007 to the present, without success. However, with an administration that is seeking to restrict H-1B visas, this legislation with a broader focus on both H-1B and L-1 programs, may become the rubric on which corporate immigration legislation is structured in the coming year.
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