By: Angelita Chavez-Halaka, Elizabeth Goings, Omar Nazarkhan
As you may know from one of our previous immigration alerts, on November 15, 2017, the U.S. House Judiciary Committee passed an amended version of H.R, 170 (Protect and Grow American Jobs Act) which will affect H-1B employers.
The initial purpose of the bill was to “close a loophole in the H-1B visa program by requiring H-1B-dependent employers once again to pay efficiently high wages to ensure the protection of the workforce in the United States…”
Current Status of the Bill. As amended, the bill was forwarded in November 2017 to the U.S. House of Representatives. As of the writing of this article, the bill has not yet been calendared in their legislative calendar. However, we will continue to observe whether this will pass from the House to the Senate. In order for the bill to become a law, it must pass in both chambers before it gets to the President’s desk.
The amended version of the bill proposes the following changes to the H-1B program which will primarily affect employers who are considered “H-1B dependent.” These proposal include the following:
- A prohibition from replacing American workers with H-1B employees – no exceptions available
- It would lengthen the current 90-day, no-layoff, policy for H-1B dependent employers and their client companies
- It increases the $60,000 salary threshold exemption to $90,000
- It eliminates the Master’s Degree exemption
- It redefines of H-1B Dependent Employer
What Hasn’t Changed: Current Law. Current law obligates an H-1B dependent employer to the following additional attestations:
- An H-1B employer must attest that no similarly employed U.S. workers were displaced in the hiring of the H-1B worker
- An H-1B employer must attest that no secondary displacement of U.S. worker was made at another worksite where the H-1B worker will be placed, and
- An H-1B employer must attest that a good faith effort to recruit and offer jobs to U.S. workers was made.
Indeed, H-1B dependent employers are banned from displacing U.S. workers directly (within their own workforce) and indirectly through a secondary worksite during a protected period of time which is a 90-day period.
Current Law: The Exemption Remains for H-1B Employers. However, H-1B dependent employers are exempted from the above attestations if the H-1B worker is considered exempt based on these criteria:
- The H-1B Dependent Employer is paying the H-1B employee a salary of at least $60,000, or
- The H-1B employee has a Master’s degree or higher in a specialty related to the employment
If it Becomes Law, How Would This Impact H-1B Dependent Employers?
Employers should note that, again, Congress has been primarily concerned with wages tied to the H-1B program and the displacement of U.S. workers.
With that said, the amended version of the bill redefines what an H-1B dependent employer is—and this may eliminate some current H-1B dependent companies from the bills’ wage requirements.
For instance, current law provides that an employer would be considered H-1B dependent if it has 51 or more full-time employees, of which 15% or more are H-1B nonimmigrant workers.
Under the Amended version of the bill, this threshold would increase to 20%. Thus, some employers who previously claimed at least 15%-19% of their workforce as H-1B nonimmigrant workers may no longer be considered an H-1B exempt employer subject to the additional wage increase.
But for the H-1B employers with workforces that meet the 20% threshold, the floor for the wage will increase by at least $30,000 in order for an H-1B worker to be exempted. Thus, employers may have to pay the lower of $135,000 (that is indexed for inflation), or the average wage for the occupation in the area of employment with a minimum of $90,000.
But we will not know what the final version of the bill will look like unless it is sent to the floor for debate and voting in the House of Representatives. If any, the bill’s passing out of the Committee indicates Congress’ sentiment that some action must be taken on the H-1B program but what the final bill or law will look like—time will only tell whether all of the above pieces will be kept in the final version.
We will continue to monitor the movement of this bill if it is sent to the floor for debate or voting.