Impact on Immigration Law Due to the Omnibus Appropriations Bill

Written by: Ashik Jahan, Esq.

On December 18, 2015, President Obama signed a $1.8 trillion tax and spending bill into law. The Omnibus Appropriations Bill (at 2000+ pages) will fund the U.S. government through the end of the fiscal year on Sept. 30, 2016. Included within those pages are specific provisions related to immigration law.

H-1B and L-1B
Specifically, the bill includes increases for L-1 (intercompany transfers) and H-1B (specialty occupation workers) supplemental fees for companies with either 50 employees or more, or for those companies where more than 50% of all employees hold L-1 or H-1B status. The supplemental fees for L-1 Petitions will increase to $4,500 and the fees for H-1B Petitions will increase to $4,000.

Unfortunately, the bill was silent on increasing the present quotas for H-1B visas, which has been a major issue in the campaign cycle. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming. Demand for such visas has recently been staggering. For example, in FY 2015, USCIS announced on April 10, 2014 that it had received 172,500 H-1B petitions during the filing period that began on April 1, including advance degree petitions. Likewise, in FY 2016, USCIS announced on April 7, 2015 that it received 233,000 petitions on April 1. In both years, a computer-generated random selection process, or lottery, was implemented to select enough petitions to meet the regular H-1B visa general category cap of 65,000 and the 20,000 for the advanced degree exemption.

The increase in fees will generate substantial additional funds for the government and will be in effect for at least 10 years, until Sept. 30, 2025. Because the prior fee level of $2,000 and $2,500 had no apparent impact on the demand for H-1B and L-1 visas, and given the level of demand the last two years, it is not expected that the increase in fees will have any impact on demand in the future.

EB-5 Investors, Conrad 30 J-1 Physicians, Special Religious Workers and E-Verify
Also, the bill did not include any changes to the EB-5 investor program, Corad 30, Special Religious Workers or E-Verify Program. Instead, these programs were extended to September 30, 2016.

There had been discussions to increase the investment thresholds beyond the current $500,000 and $1,000,000 amounts, among other changes, but Congress instead decided to merely extend the EB-5 program with no changes, as the EB-5 program was set to expire in December of 2015.

H-2B Visas
On the H-2B (Temporary Non-Agricultural Workers) front there were significant changes that tremendously assist employers who utilize the H-2B program to hire low-skilled guest workers:
• Returning H-2B workers under certain conditions will be exempt from the annual 66,000 cap. This could potentially increase the number of H-2B visa workers allowed in the U.S. in 2016 from 66,000 to 264,000.
• The use of private wage surveys, not allowed under the new H-2B wage rule, will be permitted. H-2B wages are also addressed.
• Seasonal is clearly defined as 10 months, as opposed to nine months in new H-2B program rule.
• DOL is blocked from implementing the provisions of the new H-2B program rule related to corresponding employment and the ¾ guarantee.
• DOL is blocked from implementing the burdensome DOL enforcement scheme, outlined in the new H-2B program rule, related to audits and Certifying Officer assisted recruitment.

Visa Waiver Program
The bill includes reforms to the Visa Waiver Program (VWP), which contains categorical exclusions for nationals of Syria, Iraq, Iran, and Sudan (including dual nationals), as well as people attempting to utilize the VWP, who travel to those countries. The bill does not affect legal permanent residents or U.S. citizens with dual nationality in one of the excluded countries.

Hot Button Topics Not Impacted
While hot-button topics, the bill does not contain proposals that harm, restrict, defund, or end the U.S. refugee program’s resettlement of Syrian and Iraqi refugees, nor does the bill include any langague to defund or harm “sanctuary” cities.

Likewise, the bill does not include proposals that would block the Obama Administration from continuing its current DACA program or from defending the DAPA or expanded DACA programs that are currently being litigated.

Articles of Interest

H-2B Changes Contained in Omnibus Spending Bill Favorable for Employers

Discussion of Immigration Reform Contained Within Omnibus Spending Bill

Governor Nathan Deal rescinds executive order preventing Syrian Refugee Resettlement after Georgia AG issued official opinion that the Governor did not have authority to make the order in the first place

USCIS Approves 10,000 U Visas (Immigration Benefit for Victims of Certain Crimes) for 7th Straight Year Since it Began Issuing U Visas in 2009