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H-1B, L-1, H-2B, H-2A and J-1 Visas May Be Rendered Unworkable

There is a philosophical move fueled by union sympathizers and apparently imbedded in the leadership of this administration to re-engineer the temporary non-immigrant visa programs in such a way as to render them unworkable and unusable.

This process is most visible in the H-2A Agricultural Worker program and the H-2B seasonal non-agricultural worker program. However, the same proposals identified in the proposed and final rules in these two programs are also aimed at the H-1B specialty occupation program, the J-1 Exchange Visitor program, the L-1A and L-1B intracompany transfer visa program. All employers concerned with staffing and foreign skilled talent should be vigilant in challenging attempts to change these programs.

The key unworkable proposals made by the administration include:

1. The DOL is now seeking to apply a labor certification process to all visa categories. Some of the revisions to processes already in place include:

  • abolishment of the attestation methods and reverting to the old, time-consuming directed recruitment methods, including recruitment up to 3 days before the date of need
  • added administrative procedure of bifurcation of the registration phase that addresses the employer’s temporary need and an application phase that addresses the labor market test;
  • a requirement to compensate corresponding employees (U.S. workers) in the same manner as non-immigrant worker workers;
  • three-fourths guarantee of payment of wages;
  • a requirement to pay additional transportation costs and daily subsistence;
  • new definitions for “full-time, seasonal work”; and
  • new liability standards.

2. Wage methodology

The DOL is creating a new wage structure, which will have devastating consequences for employers. We should retain the current four tiered wage system recognizing differing skill levels. The Bureau of Labor Statistics Occupational Employment Statistics (OES) wage data is the most appropriate wage data available since it is collected across all industries and all parts of the country. OES wage data is also the most reflective of the actual wages paid by U.S. employers. Calculating wages based on Davis Bacon Act (DBA) and McNamara-O’Hara Service Contract Act (SCA) wages is not appropriate for many industries unless one of the Acts applies to a specific employer/applicant as a government contractor. For those industries that are regulated by these Acts, there are some inherent problems related with those wage calculations that often makes their use inappropriate for calculating wages.

While the OES data is the most appropriate wage data to use, it is also important to recognize that the OES Survey already produces wages that are higher than those paid by employers who do not participate in visa programs.

3. Limitation on non-immigrant visa numbers through a commission rather than economic demand

How to determine how many non-immigrant visa numbers are needed for employers. The administration would like a governmental commission. Currently, caps on visas for H-2Bs and H-1Bs do not work. A market-based regulator based on supply and demand is preferred.

A Federal District Court Judge in the Northern District of Florida issued a nationwide preliminary injunction barring the DOL from implementing the H-2B program rule. Her decision also bodes well for the H-2B wage rule litigation that is pending in the same court. Legal proceedings in this case will continue.

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Photo of Laura Foote Reiff‡ Laura Foote Reiff‡

Laura Foote Reiff is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies,

Laura Foote Reiff is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using “Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying “targeted employment areas” and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

Laura’s practice also consists of managing business immigration matters and providing immigration counsel to address the visa and work authorization needs of U.S. and global personnel including professionals, managers and executives, treaty investors/ traders, essential workers, persons of extraordinary ability, corporate trainees, and students. She is an immigration policy advocacy expert and works on immigration reform policies.