This is preparatory to the conference call scheduled for 26 April.

1. H-1B and L-1, Immigration
Reform Under S. 744

2. The ―Reform‖
Discussion of the contemplated developments in the
immigration laws and policy

3. Bottom-lines first
H-1
• H-1
• Severe restrictions on ―outplacement‖
• You will pay a lot more in filing fees - $5,000 to $10,000
• Advertise for 30 days before filing
• Pay at least level 2 salaries
• Offer the job to U.S. workers at the same salary
• A lot more investigatory authority with DOL/DHS and mandatory
annual audits for 100+ employee companies
• Investigation without notice allowed
• 24 months, not 12 months limitation period for violations
• Bars minimum 1 and 2 years for willful violation and fines have been
doubled
• Restriction on number of H-1B/L-1B any company can hire
• Private cause of action for the employees

4. Bottom-lines first
L-1
• L-1
• You will pay a lot more in filing fees - $5,000 to $10,000
• Severe restrictions on ―outplacement‖ – only within your own group
• A lot more investigatory authority with DHS and mandatory annual
audits for 100-employee companies
• Investigation without notice allowed
• 24 months limitation period for violations
• Bars minimum 1, 2 years for willful violation years and fines have
been doubled
• Restriction on number of H-1B/L-1B any company can hire
• Private cause of action for the employees
• DHS is required to conduct and make public the summarized result of
annual audits of all employers with more than a 100 employees and 15%
L-1B‘s.

5. Bottom-lines first
Other Important Points
• Intended immigrants are not counted in calculating
the number of H-1/L-1
• H-4 will be given work auth. only if corresponding
reciprocity in the H-4 holder‘s country of origin
• Universities and schools that are ―for profit‖ are
treated on a disadvantageous footing

6. Go to Immigration.Com
Click on the Immigration Reform Link

7. Changes For All Companies
• Section 4101 – Increases the base level of H-1 numbers to 110,000
and the ceiling of 180,000
• The numbers can increase and decrease each year by no more or less than
10,000 over the previous year based upon this calculation:
• Quota for this Year = Last Year‘s Quota + (Last Year‘s Quota X HSJDI)
• Master‘s degree numbers from 20,000 to 25,000 if you have STEM
degree from an accredited U.S. institution of higher learning (Not ALL
Master‘s. Just STEM)
• STEM defined under DOE CIP codes
http://nces.ed.gov/ipeds/cipcode/browse.aspx?y=55
• Not all science – Just Physical
(Physics, Chemistry, Astronomy, Geology, Atmospheric Sc and
Meteorology, Materials Science, ETC) Huh?
• ―computer and information sciences and support services‖ contains a lot
including graphics, media, data entry and word processing

8. HSJDI
(H-1B Numbers Petitioned Last Year - Quota for Last Year
÷__________________________
Quota for Last Year) ÷2 = Result 1
(Average Number of Unemployed Managers, Professionals Last Year
− Average Number of ????All Unemployed Last YearHuh?
÷__________________________
Average Number of Unemployed Professionals, Managers Last Year)
÷ 2 = Result 2
HSJDI = Result1 + Result 2

9. Changes for all
Mini-Labor Certification
• All must advertise: Must advertise for 30 calendar
days on a govt.-provided web site before filing LCA
giving:
• a detailed job description of each H-1 position;
• the wage ranges and other terms and conditions of
employment;
• the minimum education, training, experience, and other
requirements for the position; and
• the process for applying for the position.
• If the number of U.S. workers in the same job zone as
the H-1B worker has decreased in the past
year, then, must also attest that for 90 days before and
after filing the H-1 petition no U.S. workers would have
been displaced

10. Changes for all
DHS Data, H-4, L-2
• DHS is required to timely publish on the web data
regarding H-1B usage and in the Federal Register the quota
for the next Fiscal Year (FY).
• Section effective in the FY that follows enactment
• All will be paying wages calculated according to new
methodology (H-1B dependent cos. have to pay level 2 min.)
• H-4 allowed employment if their country allows the same to
spouses of U.S. nationals in similar situations Huh?
• L-2 employment rights appear to be the same. Will it be
―employment incidental to status?‖

11. Changes for all
Deference for Prior
Approvals?
• During EXTENSIONS, DHS must show deference
to prior H and L adjudications unless there is:
• Material error;
• Substantial change in circumstances;
• Newly discovered material adverse information; or
• ―in the Secretary's discretion, such extension should
not be approved ‖Huh?

12. Changes for all
60 Days Grace, Visa Reval
• 60 Days’ grace period to laid off workers. Can file to
extend, change or adjust status
• Visa revalidation left to the discretion of DOS for
visas (A), (E), (G), (H), (I), (L), (N), (O), (P), (R), or
(W), if the visa applicant represents low security risk
and interview adds no material benefit, unless DOS
decides otherwise

13. Changes for all
Outplacement and PERM
Fee
• $500 fees for outplacement (H-1 dependent
employers are barred from outplacement)
• For Green Cards -- $500 fee for labor certs

14. Changes for all
H-1/L Hiring Limits
• For all employers (except NONPROFIT educational
or research) with 50 or more employees in USA, the
total number of ―H-1B and L nonimmigrants‖
employees cannot be more than:
• 75% in FY 2015;
• 65% in FY 2016; and
• 50% in FY 2017.

15. Changes for All
DOL LCA Review, Times
• Standard of review of LCA by DOL changed from
reviewing ―for completeness‖ to reviewing ―for
completeness and evidence of fraud or
misrepresentation of material fact‖ and changes
in circumstances that point to the above or to
obvious inaccuracy
• DOL can certify an LCA in 14 (not 7) days, but
allows filing of I-129 before LCA is certified
(USCIS may not approve until certified LCA is
submitted)

16. Changes for All, Slide
DOL Investigations, Slide 1
• DOL can initiate investigation (as opposed to the old law)
if review of an LCA indicates fraud or misrepresentation
• DOL can show up without notice if the notice would
interfere with the investigation or with securing
compliance
• Complaints limitation changed from 12 to 24 months
• DOL has no restriction of ―reasonable cause‖ to begin
investigation. Even DOL employees can file complaints.

17. Changes for All, Slide
DOL Investigations, Slide 2
• DOL can conduct ―voluntary surveys‖ to determine LCA
compliance
• DOL is required to conduct and make public the
summarized result of annual audits of all employers with
more than a 100 employees and 15% H-1B‘s.
• USCIS is required to share with DOL evidence of LCA
violations
• Deletes provisions forgiving technical or procedural errors
by employers acting in good faith

18. Changes for All, Slide
DOL Investigations, Slide 3
• Fines are doubled and employers liable to employees for
loss of wages/benefits caused by violations
• All old restrictions remain the same (including liquidated
damages)
• Employer must provide (redacted) copy of all documents
filed with DOL and DHS

19. Changes for All
Premium Process Appeals
• Premium processing for EB petitions appeals will
be provided by USCIS

20. Changes for H-1B Dependent; Define
Dependence for Outplacement - 1
• ―For purposes of outplacement of an employee, the term ‗H–
1B-dependent employer‘ means an employer that— i) is not
a nonprofit institution of higher education, a nonprofit
research organization, or an employer whose primary line of
business is healthcare and who is petitioning for a
physician, a nurse, or physical therapist or a
substantially equivalent healthcare occupation; and
• (ii)(I) 25 or fewer employees > 7 H-1B (25-8);
• II) 26-50 >12 H-1B nonimmigrant (26-13); or
• (III) 51 = 15 %

21. Changes for H-1B Dependent; Define
Dependence for Outplacement -2
• In determining the number of employees who are H–1B
nonimmigrants under an intending immigrant employee shall
not count toward such number‖
• (f) INTENDING IMMIGRANTS DEFINED The term ‗intending
immigrant‘ means, an alien who intends to work and reside
permanently in the United States, as evidenced by—
• (i) for a covered employer, an approved application for a
labor certification or an application that has been pending for
longer than 1 year; or
• (ii) a pending or approved I-140.

22. Changes for H-1B Dependent; Define
Dependence for Outplacement - 3
• ―(B) In this paragraph:
• ―(i) The term ‗covered employer‘ means an employer of an alien that, during the 1-year
period ending on the date the employer files an application for the labor certification for such
alien, has filed an immigrant status petition for not less than 90 percent of the aliens for
whom the employer filed an application for a labor certification during such period. Labor
certification applications that have been pending for longer than 1 year may be treated
for this calculation as if the employer filed an immigrant status petition―(C)
Notwithstanding any other provision of law, for all—
• ―(i) calculations under this Act of the number of aliens admitted pursuant to subparagraph
(H)(i)(b) or (L) of paragraph (15) an intending immigrant shall be counted as an alien lawfully
admitted for permanent residence and shall not be counted as an employee admitted
pursuant to such a subparagraph; and
• ―(ii) determinations of the number of employees or United States workers employed by an
employer, all of the employees in any group treated as a single employer under
subsection (b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986 shall be
counted.‖.

23. Changes for H-1B
Dependent
Companies,Wages
• Always have to pay level 2 wage
• DOL shall make available the relevant wage
surveys for MSA’s
• 3 Levels (not 4) ―commensurate with
experience, education, and level of supervision‖
• Methodology changed to yield higher wage

24. Changes for H-1B
Dependent DOL Wage Calcs.
• Wage Calculation Methodology
• Level 1 = ―lowest two-thirds of wages surveyed, but
in no case less than 80 percent of the mean of the
wages surveyed ‖
• Level 2 = Mean
• Level 3 = The mean of the highest two-thirds
• This also applies to For-Profit Higher Ed

25. Changes for H-1B
Dependent Ads, 180
days, Outplacement
• In addition to the 30-days recruitment applicable to all
employers, must also advertise according to industry
standards
• Advertise the same wage as would be paid to the H-1
worker
• Non-displacement of U.S. workers (employed by the
employer) increased to 180 days
• There is some confusion about the exact kick off date of
these provisions once the law is passed
• H-1B dependent employers can NO LONGER OUTPLACE
• ―An H-1B-dependent employer may not
place, outsource, lease, or otherwise contract for the
services or placement of an H–1B nonimmigrant
employee.‖

26. Fees for H-1B Dependent
Employers (H-1B AND L-1B)
• If you have 50 or more employees, starting 1
October 2015 for the next 10 years, you must pay
an extra:
• $5,000, if 30-50% of your employees are H-1B or L-
1B
• $15,000, if 50-75%
• Nonprofit higher ed and research are excluded
• Intending immigrant employees do not count towards
H or L counts

27. Wages for Nonprofit/Govt. Res. And
Nonprofit Higher Ed and related entities
• Take wage samples from other similar
organizations (not commercial, for-profits) in the
―area of employment‖
• Excluding “For Profit Higher ED,‖ there will be 4
levels, if 2 only are available, extrapolate the
levels like this:
• Step One: (Level 2 – Level 1) /3 = Quotient
• Level 3 = Level 2 + Quotient
• New Level 1 = Old Level 2 – Quotient
• Non-profit Higher Ed special wages (calculated
above) only for teaching and research positions

28. No Changes In:
• Quota exemptions

29. Chapter C, L-1 Visas
• No outplacement of L nonimmigrants, except within
employer’s related companies:
• shall not place, outsource, lease, or otherwise contract for the
services or placement of such alien with another employer unless—
• ―(i) the other employer is an affiliate, subsidiary, or parent entity of
the petitioning employer;
• ―(ii) such alien will not be controlled or supervised principally by the
employer with whom such alien would be placed;
• ―(iii) the placement of such alien at the worksite of the other
employer, who is not described in clause (i), is not essentially an
arrangement to provide labor for hire for the other employer; and
• ―(iv) the other employer attests that the other employer has not
displaced and will not displace a United States worker during the
period beginning 90 days prior to and 90 days after the date the
employer files the application.‖.

30. L-1 Visas, New Office
• A new office petition may be approved for up to 12
months only if:
• the alien has not been the beneficiary of 2 or more
petitions for new office during the immediately
preceding 2 years; and
• the employer operating the new office has—
• an adequate business plan;
• sufficient physical; and
• the financial ability to commence doing business
immediately upon the approval of the petition.

31. L-1 Visas
Extension After New Office
• An extension of the new office-based approval may
not be granted until the importing employer shows
• evidence that the importing employer meets all the usual
requirements for L status and provides:
• evidence that the importing employer has complied with
the business plan submitted under new office petition
• evidence of the truthfulness of any representations
made in connection with the filing of the original petition;
• evidence that the importing employer has been doing
business at the new office through
regular, systematic, and continuous provision of goods
and services

32. L-1 Visas
DHS/DOS Cooperation
• DHS will work with DOS to make sure the foreign
company continues to exist

33. L-1 Visas, Limitation on
Numbers
• If the employer employs 50 or more employees in the United
States, the sum of the number of such employees who are
H–1B nonimmigrants plus the number of such employees
who are L-1B nonimmigrants (not counting intending
immigrants) may not exceed:
• 75 % of the total number of employees, for fiscal year 2015;
• 65 % of the total number of employees, for fiscal year 2016;
and
• 50 % of the total number of employees, for each fiscal year
after fiscal year 2016.
• The term ‗employer‘ does not include a nonprofit institution
of higher education or a nonprofit research organization

34. L-1 Petition, Filing Fees
• the filing fee for an application for admission of an L
nonimmigrant shall be as follows:
• (1) For each of the fiscal years 2014 through 2024, $5,000 for
applicants that employ 50 or more employees in the United
States if more than 30 percent and less than 50 percent of the
applicant's employees are H–1B nonimmigrants or L-1B
nonimmigrants.
• (2) For each of the fiscal years 2014 through 2017, $10,000 for
applicants that employ 50 or more employees in the United
States if more than 50 percent and less than 75 percent of the
applicant's employees are H–1B nonimmigrants or L-1B
nonimmigrants.
• Nonprofits are excluded*

35. L-1 Visas, Investigations
• DHS can initiate a compliance investigation, with or
without a complaint
• DHS may withhold the identity of a complainant
24 months limitation period
• Notice will be provided unless it interferes with the
investigation or securing compliance. The decision not
to provide notice is non-reviewable.
• DHS is required to conduct and make public the
summarized result of annual audits of all employers
with more than a 100 employees and 15% L-1B‘s.

36. L-1 Visas, Penalties
• Money penalties
• Debarment for at least 1 year (no upper limit) for
failure and at least 2 years for willful failure
• Private cause of action for employees
• Blanket L visas program will also be evaluated

37. Go to Immigration.Com
Click on the Immigration Reform Link

38. Presentation

39. Thank you
firm@immigration.com
Presented By: Rajiv S. Khanna
April, 2013