U.S. Citizenship and Immigration
Your Complete Guide
~ Updates and Errata ~
October 1998
1998 AMENDMENTS TO H-1B LAWS
The U.S. House and Senate have passed bill amending the H-1B laws. It ?s likely that Congress will pass a bill soon and President Clinton will sign it into law. The basic qualifications for H-1B status remain the same. However, The Congress increased the yearly number of H-1B visas and new requirements were placed on ?H-1B dependent? employers. Also, employers who violate the law now face stiffer penalties. The new law requires the employer to pay $500 beyond the normal H-1B filing fee. All employers must attest that they will offer H-1B workers the same benefits they offer other workers. These benefits include health, life, disability, and other insurance plans, retirement and savings plans, bonuses and stock options.
The New Numbers
For fiscal year 1999 (which began on October 1, 1998), 115,000 new workers can get H-1B status. The number will remain at 115,000 in fiscal year 2000 and get reduced to and 107,500 in fiscal year 2001. The cap will return to 65,000 for fiscal year 2002.
H-1B ?Dependent? Employers
The new law requires special promises or ?attestations? only from employers who employ a high percentage of H-1B workers. The law calls these employers ?dependent employers.? Dependent employers must make special promises, called ?attestations,? to get the USCIS to approve an H-1B petition. The government will require the new attestations once they write final regulations. As we went to press, the USCIS had yet to issue the new regulations.
The law defines a dependent employer as:
- an employer with 25 or fewer full-time employees who have more than seven H-1B workers;
- an employer with 26-50 full-time employees who has more than 12 H-1B workers and;
- an employer with more than 50 full-time employees with 15% or more H-1B workers.
The law also requires certain employers who violated H-1B laws to sign the new attestation. The new attestation requirement goes into effect only after the USCIS issues new regulations. I will post an analysis of the new regulations as soon as the USCIS issues them.
The law DOES NOT require the new attestation if a dependent employer is petitioning for an H-1B worker who holds a master?s or higher (or the equivalent) or who receives wages at a rate of at least $60,000 per year.
The New Attestations
Dependent employers must attest that they have not
"displaced" any U.S. worker with an H-1B worker. They must also attest
that they won?t displace any U.S. worker employed by them within the
period 90 days before and 90 days after the filing of an H-1B visa
petition. Similar requirements apply when a dependent employer places an
H-1B worker to provide services in another firm. Dependent employers must
also attest that they have taken good-faith steps to recruit in the United
States. They must offer the position at the prevailing wage to any U.S.
worker who applies and is equally or better qualified than the H-1B
applicant. The employer need not recruit if the H-1B worker is a person of
extraordinary ability, is an outstanding professor or researcher, or is a
multinational manager or executive.