On Saturday, November 20, 2004, Congress passed a wide-ranging omnibus bill.   After several minor changes, that bill was signed by President Bush on Wednesday. Several parts of the bill impact business immigration, specifically H-1(b) and L-1 visas.    

Also this morning the Department of State issued the long-awaited retrogression backlog numbers.  Effective January 1, 2005, Indian, Filipino, and Chinese nationals are retrogressed until January 2002, which effectively adds three years processing to any case which does not have a priority date prior to January 2002.   Priority dates are established upon the filing of a Labor Certification or I-140 Petition for Alien Worker, whichever comes first. 

H-1(b) Visa Reform Act of 2004: 

·                     Adds an H-1(b) "training fee," increasing the H-1(b) filing charge by $1,500, except any individual's second extension by the same employer.   Employers with no more than 25 full-time employees  may submit a halved training fee of $750.  This is effective immediately. 

·                     Adds a $500 "fraud" fee to all H-1(b) cases and to all L-1 cases.   This provision goes into effect on March 8, 2005.  This fee only applies to the first case filed on behalf of an individual, per employer, not to any extensions or amendments. 

·                     Exempts foreign nationals who hold at least a Masters degree earned from a U.S. institution from the H-1(b) cap, but limits the exemption to 20,000 applicants per year.    This provision takes effect on March 8, 2005.  

·                     Requires employers to pay 100% of prevailing wage; eliminating the so-called 95% safe harbor.  

·                   Compels the Department of Labor (DOL) to create a four-level wage system.  In the  interim a temporary four-level wage system has been created, which is based on the current two-level system.  

·                    Re-enacts and makes permanent the provision requiring additional attestations on the LCA by employers who are H-1B dependent or have committed a willful failure or misrepresentation during the preceding 5 years.   

·                     Liberalizes the DOL's investigative authority. 

L-1 Visa (Intracompany Transferee) Reform Act of 2004:  

·                     Does not bar L-1(b) employees from being placed at third party sites, as has been widely reported;   however, it does bar L-1(b) visa holders from being primarily stationed at the worksite of another employer in cases where:   

1.      The L-1B visa holder will be "controlled and supervised" by the third party employer, or 

2.     The placement of the L-1B visa holder at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer.   

·                     Compels Blanket L applicants to have worked for the petitioning company's overseas affiliate for at least one year.  Three years ago this section had been reduced to six months.  

·                     Establishes a Task Force to report on the vulnerabilities and the potential abuses of the L-1 system.  Similarly the DHS is charged with reporting on the number of L-1 non-immigrants who work primarily off-site.  

·                     These provisions go into effect on June 6, 2005.

NEW FILING FEES CHART – exclusive of Premium Processing Fees