US: Proposed Legislation Would Impact H-1B Dependent Employers
By: Betsy Stelle Morgan and Matthew Gorman / Chicago
Hundreds of immigration bills are proposed every year and ultimately never become valid law. It is important to remember that such proposals carry no weight unless they are enacted. We will not flood your inbox with every piece of proposed immigration legislation. However, certain legislative proposals generate more questions and rumors than others. One such proposal, the High-Skilled Integrity and Fairness Act of 2017, was introduced earlier this week by Congressman Zoe Lofgren. If passed in its current form, this legislation would have a major impact on the H-1B visa. Please note that this legislation has been proposed not enacted. By sending this alert, we hope to provide you with answers to questions you may face from your employees or the employees of the companies with which your company contracts for workers.
As background, certain U.S. employers are considered to be "H-1B dependent" as a result of the number of individuals in H-1B status they employ. Companies with at least 51 full-time employees and whose H-1B population comprises at least 15% of its U.S. workforce are considered to be H-1B dependent. H-1B dependent employers must make certain attestations and take additional steps to attempt to fill an open position with U.S. workers before employing an individual in H-1B status.
As the law currently stands, employers whose H-1B employees will be compensated at least $60,000 or those who hold master's degrees in a specialty related to the intended employment are considered "exempt" from the H-1B dependency requirements. In other words, even if the employer is H-1B dependent, it need not take the ordinary additional steps to hire such an "exempt" H-1B employee.
Below, we have outlined the key talking points with regard to this proposed bill.
- Rep. Lofgren's bill, if passed in its current form, would increase the minimum salary for "exempt" status, thereby potentially making the H-1B Petition process more cumbersome for H-1B dependent employers by triggering the certain attestations and additional steps. This has been inaccurately described as an increase in the "minimum wage" for all H-1B workers. If enacted, this change would only affect H-1B dependent employers wishing to avoid the extra attestations.
- This proposal is similar to a bill introduced last summer by Congressman Darrell Issa that would also increase the minimum salary for "exempt" status.
- Rep. Lofgren's bill would prioritize market-based allocation of visas to companies willing to pay 200% of the prevailing wage. Currently, H-1B visas are adjudicated pursuant to a randomized lottery system as a result of the annual cap. Rep. Lofgren's bill seeks to change this system, in-part, to prioritize employers who are willing to pay higher salaries.
As always, we are available to discuss proposed legislation or other issues that may arise. Please contact us for further information or if you have any questions.