Sunday, January 30, 2005

 

Visa Reform Act changes to L-1 and H-1B

The changes signed into law on December 8th made changes to both the L-1 and the H-1B. The changes made to the programs signal a compromise in the Congress and administration between the camp made up of those who see the programs as undermining the U.S. worker's position and who are against immigration generally on who side and those who favor liberalizing the process (for a wide variety of reasons) on the other.

A couple of years ago a harsh spotlight was put on the L-1 (before this, a politically ignored category) by reports that companies that had sponsored many of its foreign employees for that status were outsourcing them per contract and therefore should have been H-1B (which carries a lot of regulatory requirements regarding prevailing wage, notice and record keeping, etc.)

This was clearly not a valid use of the L-1 according to its intent (allow companies to bring exectutives, managers and people with company expertise) to the US. But is was not precluded by the law. Now it is. The L-1 has to work for the sponsoring petitioner in the US.

Also, the provision allowing for use of the blanket L after six months of employment for a foreign sub was rescinded. L-1's now must work for one year for the foreign company unit. Compared to some of the proposals that came out at the time of L-1 scrutiny, these changes are fairly mild.

More under attack is the H-1B. The quota limit reverted back to 65,000 two years ago and will not be raised again soon. This legislation signaled more compromise by making it much more expensive to file an H-1B, but exempting from the quota the first 20,000 master's degree holders that apply for visas in the fiscal year. This takes effect on March 8th.

Questions: How does this exemption work? If I file at the earliest possible moment for an H-1B for the beginning of the new fiscal year, have a master's degree, but there are still plenty of H-1B visas to be allocated, does my petition still affect the quota exemption pool, decreasing it by one? Or does the exemption only start being counted once the 65,000 are exhausted? Also, everyone is assuming, including myself, that the 20,000 will be available this March 8th, and not starting with the next fiscal year. I think this is the intent and this March 8th is the start date, but many people are asking the question.

Also, when can I start filing for the exemption pool H-1B? Clearly not yet, but do I have to wait until March 8th, in order to file? Lots of clarification is needed.

The spirit of compromise was at work in this legislation, lets see if it holds in the more problematic debate: Immigration Reform and the status of undocument workers.

gcf

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