New Law Increases Annual Quota of H-1B Visas - Other Changes Include Heightened Prevailing Wage Standards and Enhanced Enforcement Tools

On October 1, 2004, U.S. Citizenship and Immigration Services announced that the annual quota of H-1B visas had been reached, and that no new H-1B petitions would be accepted for processing. The annual H-1B visa quota is established by law and is currently set at 65,000. Because the quota was reached a full year in advance, most for-profit employers are currently unable to file H-1B petitions on behalf of candidates who do not currently hold an H-1B visa or who have not recently held such status. Under current law, employers may begin filing new H-1B petitions no earlier than April 1, 2005, to request an October 2005 start date.

On December 8, however, President George W. Bush signed the 2005 Omnibus Appropriations Act (H.R. 4818). The law contains several immigration provisions, among them an increase in the H-1B quota by 20,000 visas. The H-1B visa increase is available only to employees who hold a master’s or higher degree from a U.S. university. The law adds a workforce training fee of $1,500 per H-1B or L-1 visa upon employers of more than 25 employees, and includes a separate fraud prevention fee of $500 per visa.

In addition, the new law imposes heightened prevailing wage standards upon employers, but requires that the Department of Labor (DOL) reform existing problems with the prevailing wage calculation methodology that have plagued employers for several years. Although the bill creates increased immigration enforcement tools and grants new investigative authority to the DOL, it also includes new “good faith” defenses for employers.

Other immigration changes contained in the appropriations act include several modifications to the L-1 visa program (which allows multinational companies to transfer overseas employees to U.S. offices). In response to past charges that employers have utilized the L-1 visa as a tool to displace American workers, the reforms require employers to directly supervise L-1 workers and prohibits companies from outsourcing or stationing L-1 workers at third-party sites. Some provisions are effective immediately.


Others, including the increased H-1B visa allocation, will take effect on March 8, 2005.

Source: http://ogletreedeakins.inherent.com/images/ns_attachment/attachment85.pdf