[Note: The H-1B tax language in the bill was amended at the last minute and corrected and I’m correcting this summary now that I have the final language.]
Within the 2000+ page Omnibus appropriations bill passed by Congress last Friday, a number of immigration provisions have been included. The bill is also notable for what it did not include. This summary discusses the provisions included and also comments on measures that were not and what the fate is of some of the deleted proposals.
Employment and Investor-based Immigration
- EB-5, Conrad 30, Religious Workers and E-Verify
The major news was the failure to include a number of EB-5 investor immigration provisions that had been negotiated for months. Those provisions would have included hikes in the investment thresholds beyond the $500,000/$1,000,000 amounts, anti-fraud provisions, and restrictions on the percent of regional center applications that could come from urban areas. Instead, Congress simply chose to extend the EB-5 program with no changes until September 30, 2016. The program was set to expire this month. The President is considering an executive action, however, that could raise the $500,000 investment threshold. Under the statute, the lower investment threshold can be no less than half of the higher amount. That means it can be raised up to $1,000,000 without Congress taking action.
Senator Grassley, the Republican Chair of the Senate Immigration Subcommittee, was livid that the proposed changes were not included. He had threatened to block the extension of the program unless changes were made. Don’t look for him to sit on the sideline on this issue. It is still very likely that changes are coming to the EB-5 program.
The other program expiring in December that Congress was considering changing is the Conrad 30 J-1 waiver program for physicians working in medically underserved communities. This is a highly popular program and the changes considered were considered uncontroversial. They would have made physician transfers between underserved areas easier and also clarified the timing requirements for physicians moving from J-1 status to H-1B status. Perhaps because the program’s extension is tied to the EB-5 program extension, Speaker Ryan chose to exclude the Conrad changes as well and simply extended the program without change until September 30th. There is speculation that the proponents of the bill language will seek to get the changes passed by unanimous consent early in 2016.
Along with EB-5 and Conrad, the special immigrant religious worker program and the E-Verify electronic verification system were also extended until September 30, 2016. Look for E-Verify to come under the spotlight again in 2016 as some Republicans will push to make the program mandatory for employers.
- H-1B and L-1 Visas
Changes were also made to the H-1B and L-1 visa programs. Companies with 50 or more employees seeking to higher L-1 employees and who have more than 50% of their employees working on an H-1B or L-1 visa, will be subject to a tax of $4500 on each L-1 employee. Companies with 50 or more employees seeking to higher H-1B employees and who have more than 50% of their employees working on an H-1B or L-1 visa will be subject to a tax of $4000 on each H-1B employee. The language is aimed at large staffing companies particularly those placing Indian IT workers. The new taxes are applicable to both extension and initial petitions and will be in place until September 30, 2025. The revenue from the tax will be split between 9-11 programs and the biometric entry-exit program.
- H-2B visas
Changes are also coming to the H-2B program. In 2014, Congress passed a temporary measure allowing for the staggered entry of seafood workers during a 120 period following approval of the H-2B petition (though if workers enter between day 90 and 120, a new assessment of labor needs will be required. The Omnibus bill makes that temporary measure permanent.
The bill also modifies prevailing wage requirements for H-2B applications. The Department of Labor will now be required to accept private wage surveys complying with Labor Department regulations in all cases and it will not matter if Occupational Employment Statistics survey data is available.
Finally, Congress revived an expired law that exempts H-2B returning workers from the annual 66,000 cap. Some H-2B opponents believe this will lead to a four-fold increase in the number of H-2B workers in the US. However, many experts believe the number will be considerably smaller than that.
Congress has killed a new H-2B regulation regarding “corresponding employment” in the H-2B program. Under a recently enacted Department of Labor H-2B regulation (20 CFR 655.5), corresponding American workers are defined as non-H-2B workers who perform substantially the same work in the H-2B job order or substantially the same work performed by H-2B employees. The regulations require corresponding employees to receive the same rights and benefits as H-2B workers. The statute requires H-2B workers to be paid at least as well as US workers, but the regulation would require US workers to be paid more when H-2B workers are actually paid better.
Another 2015 DOL regulation killed by the bill is the H-2B three-quarters guarantee listed in 20 CFR 655.20(f). According to a DOL fact sheet:
All H-2B employers must fulfill a three-quarters guarantee. The employer must guarantee to offer the worker employment for a total number of work hours equal to at least three-fourths of the workdays in each 12-week period (or 6-week period for job orders lasting less than 120 days). This obligation begins with the first workday after the arrival of the worker at the place of employment or the advertised first date of need, whichever is later, and ends on the end date indicated in the job order (or its extensions, if any). A workday means the number of hours in a workday as stated in the job order.
Congress has also nullified a new DOL regulation on H-2B seasonal employment. Under the April 2015 regulations, “seasonal” employment is defined as being less than nine months. A contradicting USCIS regulation defines “seasonal” as ten months or less and Congress has sided with USCIS.
Additionally, Congress has killed the new DOL audit regulation. Under the 2015 H-2B Interim Final Rule, the DOL has the ability to audit any adjudicated application, including those applications that are certified, denied or withdrawn.
Finally, the DOL’s new assisted recruitment process included in the April 2015 interim final regulation has been killed by Congress. The Assisted Recruitment rule allows Certifying Officers (Cos) to monitor an employer’s advertising and recruiting. The DOL envisioned this process applying after it conducted an audit as described above and employers notified in writing that they are subject to assisted recruiting would have to comply with those extra requirements for two years. Under assisted recruiting, the employer would need to meet the normal H-2B recruiting rules plus any additional instructions from the CO. According to the DOL, the additional requirements might include the following:
- Provide the CO with a draft of its newspaper advertisement for review and approval before it places the advertisement;
- Use specific sources to recruit for U.S. workers (e.g., newspapers or other publications);
- Keep advertisements and/or the job order posted longer than the normal minimum timeframe.
Moreover, the CO may require the employer to submit evidence of the recruitment and results, such as proof of publication (e.g., tearsheets) for all advertisements, poof of the posting of the job order, and /or proof of contact with all SWA referrals
After much debate on Capitol Hill regarding refugees, very little was included in the Omnibus bill on that subject. Efforts to end all resettlement from Syria or Iraq failed and funding for refugee resettlement has been retained in the budget. Furthermore, the onerous changes to the refugee program included in various bills circulated in the House or Senate were not included in the Omnibus.
Visa Waiver Program
The media has widely reported changes to the Visa Waiver Program included in the Omnibus. Much of HR 158, a previously passed House bill on the Visa Waiver was incorporated in to the appropriations bill.
All VWP applicants must be in possession of machine-readable passports and beginning on April 1st, 2016, all passports must be electronic and fraud resistant. They must contain relevant biographic and biometric information and otherwise meet internationally accepted standards for electronic passports. The government of participating VWP countries must certify that it meets these requirements by April 1. 2016 and must also certify by October 1st, 2016 that it requires these passports for entry into their countries at key ports of entry.
The VWP program now contains a new requirement that any individual seeking to enter under the VWP may not have been present at any time after March 1, 2011 in Syria or Iraq, any country designated as a state sponsor of terrorism or any other country that is an “area of concern” designated by DHS (the list of these countries must be submitted to Congress within 60 days). The rule applies as well to dual nationals of those countries even if they have not traveled to the country. This requirement is potentially broader than one might think because some countries consider a person a national of their country even if they have not taken any steps to retain such nationality. An exception to the rule is included for soldiers of VWP countries who are performing military service in one of the excluded countries. And waivers of this new restriction may be requested from DHS. The White House has also said it may use its executive authority to exclude Iran from the list since the country is an enemy of ISIL and the application of this new law may run contrary to the easing of sanctions negotiated last summer.
There are additional changes affecting the Visa Waiver program including the following:
- Participating countries must report lost or stolen passports to Interpol within 24 hours (the law previously said “within a strict time limit”
- Within 270 days, each country with an international airport must certify that it to the maximum extent allowed under the laws of the country, it is screening for unlawful activity each person who is not a citizen of that country (with the exception of EU nationals moving between EU countries) who is admitted or departs using the relevant databases maintained by Interpol; countries not complying can be terminated by determination of DHS and DOS until they are deemed to be complying
- Participating countries must fully implement the Passenger Information Exchange Agreement
- Countries that are deemed by DHS to not be sharing information can be terminated from the VWP and not reinstated until they are deemed to be sharing such information
- DHS, in consultation with the State Department and the Director of National Intelligence shall identify any participating countries that are determined to present a “high risk to the national security” and may have their VWP participation suspended; factors included in determining “high risk” include the number of nationals determined to be ineligible to travel to the US under the VWP, the number of known or suspected terrorists with the country’s nationality, the number of individuals who have traveled to Iraq or Syria, the level of cooperation with the US in counter-terrorism efforts and the adequacy of border and immigration control in the country.
- DHS will provide assistance to non-VWP countries in submitting to Interpol information about theft or loss of passports and in implementing electronic passport systems.
Also, aside from the changes to the rules for participating in the Visa Waiver Program, the Director of National Intelligence will also be required to submit a report every 60 days to congressional intelligence committees that includes the total number of foreign fighters who have traveled to Syria or Iraq whose countries of origin is a Visa Waiver country.
DAPA/DACA, Sanctuary Cities and Detention
In previous budget battles, funding for the President’s deferred action programs became a flash point and even led to a government shutdown. No language was included in the Omnibus this time that affected the ability of the President to implement the DAPA and expanded DACA program should the Supreme Court rule those programs can proceed.
Furthermore, despite heated rhetoric this past summer regarding so-called “Sanctuary Cities”, no language was included that would have withheld fund from jurisdictions unwilling to comply with certain federal enforcement mandates. And a push to compel the President to detain more individuals also did not make it in to the bill.