Update on Proposed Bill Targeting H1B-Dependent Employers

Every year, there are numerous immigration bills proposed in Congress. It is extremely rare for any of these proposals to gain traction. Therefore, MurthyDotCom typically does not report on proposed bills until and unless it appears there is a bill with a reasonable chance of being signed into law.

At this point, the Protect and Grow American Jobs Act (“PGAJA”), which would make some key changes to the rules regarding H1B-dependent employers, still faces an uncertain future. Although it has found some bi-partisan support in the U.S. House of Representatives, it still has a long way to go before becoming law. Still, given that the bill has made some headway in Congress, we consider it appropriate to provide a brief summary.

Current Status of the Bill in Congress

In order for a bill to become federal law in the United States, it must be passed by both chambers of Congress, the U.S. House of Representatives (House) and the U.S. Senate, and then be signed into law by the President. Like most proposed bills, after being introduced in the House, the PGAJA was sent for review. In this case, the Judiciary Committee performed the review, where it went through mark-up. The mark-up process potentially includes actions such as debates on the bill, amendments, and rewrites. The committee members, composed of 23 Republicans and 16 Democrats, voted in November 2017 to send the bill to the House leadership for consideration.

Being voted out of committee is a significant achievement – only about 25 percent of bills make it to this stage. Nonetheless, a large majority of the bills that reach this point still fail to ever become law. For now, it is unclear when – or even if – the House may take any further action on the PGAJA bill. And, even if the bill does ultimately succeed in the House, it would still have to get through the Senate.

Current Rules for H1B-Dependent Employers

The changes proposed by the PGAJA focus on H1B-dependent employers. In order to understand the proposed changes, it is helpful to be familiar with the current rules that pertain to H1B dependent employers.

Under current immigration law, the size of a company and the percentage of its workforce in H1B status are used to determine whether the company is an H1B-dependent employer. An H1B-dependent employer is one that can be described by one of the following.

• Employs no more than 25 full-time employees, of which more than seven are in H1B status
• Employs at least 26 employees, but not more than 50, of which more than twelve are in H1B status
• Employs more than 50 employees, of which at least fifteen percent are in H1B status

Each time an H1B-dependent employer files an H1B petition, the company must make attestations regarding non-displacement of U.S. workers. An H1B-dependent employer that places workers at the worksite of a different company must further attest to the non-displacement of employees at the worksite. Second, the employer must attest to good-faith efforts to recruit U.S. workers for the job for which H1B workers are sought.

There is an exception to the additional attestations for H1B-dependent employers if the foreign national beneficiary is considered an “exempt” employee. A beneficiary is an exempt H1B employee for the dependency attestations if the beneficiary holds a master’s degree in a relevant field or the beneficiary will be paid an annual salary of at least $60,000.

Larger Companies Allowed More H1B Workers Before Being Deemed H1B-Dependent

To start with, the PGAJA would change the definition of H1B-dependency as it applies to a company with more than 50 employees. Such a company would be considered H1B-dependent if at least twenty percent of its workers were in H1B status, as opposed to the fifteen percent cutoff under current law. There would be no change to the definition of H1B-depedent employers for companies with 50 employees or fewer.

Minimum Salary Increase for Exemption to Attestation Requirement

Under the PGAJA, the exemption for the attestation requirement would be raised from the current salary requirement of $60,000, to between $90,000 and $135,000, depending upon the mean wage level for the occupation in the area of intended employment. These figures would also automatically adjust based on changes in the consumer price index.

U.S. Worker Recruitment Requirement and Additional Layoff Protections

If an H1B-dependent employer files an H1B petition for a worker who does not meet the new exemption requirement, the PGAJA would broaden the provisions related to the non-displacement of U.S. workers. More critically, it would also require the employer to submit evidence of its efforts to recruit U.S. workers for the position.

Added Fee to Pay for DOL Investigations

The PGAJA would require the U.S. Department of Labor (DOL) to investigate at least five percent of H1B-dependent employers each year. This investigation process would be paid for by an additional government filing fee of $495 for H1B petitions filed by H1B-dependent employers.

Conclusion

Again, the PGAJA is still just a proposal. There could be major changes to the bill as it moves its way through the legislature. Or, like many bills, it may be voted down, or never be voted on at all. MurthyDotCom will continue to closely track the proposal and provide updates, as warranted.

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