Border Security, Economic Opportunity and Immigration Modernization Act

Posted By USI Law || 17-Apr-2013

Millions of immigrants currently residing in the United States illegally may be granted the opportunity to obtain citizenship under a comprehensive Senate proposal that would represent the most audacious overhaul of the nation’s immigration system in over 30 years. The highly anticipated proposal from the “Gang of Eight” senators, titled the “Border Security, Economic Opportunity and Immigration Modernization Act” on April 16, 2013, implements tens of thousands of new visas for foreign workers in low-skilled jobs. While providing those who are in the United States illegally a path to Citizenship by paying a relatively paltry $1000.00 fine (plus a $500 per time fee for the provisional status “blue” card), the proposed bill imposes stringent conditions on the H-1B and L visa programs which applies to high skilled, college educated and law abiding professionals.

Highlights of the bill are as follows:

  • Employers with 50 or more employees cannot employ additional H-1B or L employees if:
    • 75% of total number of employees for FY 2015 are H or L employees;
    • 65% of total number of employees for FY 2016 are H or L employees;
    • 50% of total number of employees for each fiscal year after FY 2016 are H or L employees.
    • Those employees who are “intending immigrant” employees shall not count toward the percentage calculation.
  • The H-1B Cap will increase to 110,000 for FY 2015 and will be subject to subsequent increases through a complex formula up to 180,000 over a long period of time (but no more than an increase of an additional 10,000 per year).
  • There will be an increase in STEM (Science Technology Engineering and Mathematics) Non-Immigrants with a U.S. Master’s or higher degree holder to 25,000 per year.
  • Filing fees for H-1B dependent employers will increase up to $10,000.00 for employers with 50 or more employees and if more than 50% and less than 75% of employees are H-1B nonimmigrants or L nonimmigrant.
  • Spouses of H-1B workers will be provided work authorization if the sending country of the worker provides “reciprocal treatment” to spouses of U.S. workers.
  • There will be a 60-day grace transition period upon the termination of employment for H-1B and L workers to switch jobs.
  • A new fee of $500 will be implemented for the filing of a Labor Certification.
  • H-1B dependent employers will be required to offer each H-1B non-immigrant wages that are no less than level 2 wages.
  • H-1B non-immigrant employers will be susceptible to lawsuits for “lost wages and benefits.”
  • Employers are required to advertise job openings on a Department of Labor Website for 30 calendar days prior to hiring an H-1B applicant for the specified position.
  • An additional fee of $500.00 for placement of H-1B non-immigrant employees to a third party will be implemented.
  • Annual compliance audits will be implemented for each employer with more than 100 employees (if more than 15% of such employees) are H-1B non-immigrants.
  • All H-1B and L dependent employers must provide respective employees with a copy of their petition.
  • All H-1B and L must be provided by U.S. Embassy or Consulate with a booklet providing information about their legal rights.
  • Employers may not displace United States Workers by giving preference to H-1B or L-1 applicants.
  • Additional rules and regulations are may be implemented on the use of L blanket petitions which will be reviewed by the Inspector General of the Department of Homeland Security.

There is significant momentum in Congress for the passage of this legislation. We will keep you informed of developments as this bill moves through the legislative process.

The aforementioned provisions provided in the Border Security, Economic Opportunity and Immigration Modernization Act have severely negative implications for you as an employer. We urge you to contact your local congressmen and express your firm opposition to this piece of legislation at your earliest opportunity.

Please feel free to contact us with any questions regarding this issue.

Categories: H-1B