Rep. Zoe Lofgren (D-Calif.)’s newly proposed bill seeks to change the requirements for exempt H-1B non-immigrants. This has caused much concern for companies that hire H-1B workers. However, the bill as written may not truly pose a threat. In short, this bill would only affect those companies whose staff consists of at least 15% of H-1B workers, and even these companies may not be impacted by its financial burden.
Companies that hire H-1B workers fall under two distinct categories: those are that are H-1B Dependent and those that are not. Companies whose staff consists of at least 15% of H-1B workers are considered H-1B dependent employers. However, H-1B non-immigrants that are “exempt” are not counted towards that percentage. The current rules for exemption are as follows:
- Receiving wages (including bonuses and similar compensation) at an annual salary of at least $60,000;
- Attaining a Master’s or higher degree (or its equivalent) in a specialty related to the intended employment.
The proposed bill would change the requirements for exempt H-1B non-immigrants by increasing the required wages to $130,000 and removing the Master’s degree requirement. The bill affects a small subset of H-1B employers: those whose staff consists of at least 15% H-1B workers and would like to exempt some of those employees to avoid H-1B dependent status. However, those employers have the option to avoid the increasing wages by accepting H-1B dependent status.
Companies that incur H-1B dependent status are required to advertise job vacancies and provide attestations and documentation to show they have taken good faith steps to recruit U.S. workers. Primarily, the vast majority of companies attempt to hire U.S. workers first, and the burden of demonstrating this is relatively minimal. Additionally, if companies are in the process of filing green card applications for any of their employees, they are already doing everything needed to meet the advertising requirement. The advertising involved in the PERM Labor Certification (“PERM”) process also satisfies the advertising requirement for H1B Dependent employers. Furthermore, the recruitment documentation used for the PERM process will also satisfy the H-1B documentation requirements.
Conclusively, this bill will not affect many companies that hire H-1B workers, and for those that it does affect, the financial burden could be avoided.
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