By: Angelita Chavez & Elizabeth Goings
On November 15, 2017, a U.S. bill which could potentially impact H-1B dependent employers was passed by the House Judiciary Subcommittee on Immigration and Border Security. Known as the “Protect and Grow American Jobs Act”, H.R. 170 was introduced in January with broad bi-partisan support and will now enter the U.S. House of Representatives for consideration and a vote.
Introduced by Representative Darrell Issa of California, H.R. 170 proposes several changes to the current H-1B program:
- It prohibits employers 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.
Current Obligations of H-1B Dependent Employers
Under the regulations, an employer is considered H-1B dependent if it has:
- 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
- 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
- 51 or more full-time equivalent employees of whom 15% or more are H-1B nonimmigrant workers.
These employers must make certain attestations regarding recruitment of U.S workers and are prohibited against displacement of U.S. workers. An exemption applies if the H-1B employee meets certain criteria: (1) if an employer is paying the H-1B employee a salary of at least $60,000; or (2) if the employee has a master’s degree tied to the specialty occupation. Per regulation, the H-1B employer is responsible for demonstrating its compliance with the non-displacement obligation.
Possible Impact on H-1B Dependent Employers
One major consequence is that the bill would steeply increase the salary requirements for H-1B workers. H-1B dependent employers would 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.
Employers that do not meet the $90,000 threshold for exemption will be subject to the attestations on the Labor Certification Application (LCA), namely the good faith recruitment and the 90-day period (among other requirements).
What’s Next for H-1B Employers?
We are continuing to monitor the next stages of this bill’s life on the House floor. If you are concerned about whether you are H-1B dependent or are heading there, please feel free to contact us for more information.