Senate bill would overhaul H-1B visas, eliminate OPT

16 Dec 15

UNITED STATES

A Senate bill introduced by Ted Cruz (R-Texas) and Jeff Sessions (R-Ala.) would significantly restrict employers’ use of H-1B visas by setting a salary threshold of $110,000 for H-1B employees and raising other minimum criteria. The bill also proposes to eliminate the Optional Practical Training program for foreign students.

In addition to new wage requirements, the bill would raise H-1B eligibility criteria to require a doctorate or post-doctorate degree in addition to two years of work experience. Individuals holding undergraduate or master’s degrees would be required to have 10 years of work experience. Candidates with doctorate or post-doctorate degrees from universities in the U.S. would be prioritized.

The “American Jobs First Act,” S. 2394, would also overhaul employers’ obligations, attestations and notice requirements when seeking certification of a Labor Condition Application (LCA) for H-1B workers. Employers would be required to attest that they have recruited U.S. citizens and lawful permanent residents for the jobs and that they will not displace such workers with nonimmigrant workers. To boost transparency, employers would be required to disseminate LCA filings to all of their employees and publish them online.

The bill would broaden the Department of Labor’s investigative authority and increase penalties for employer violations, which include criminal prosecution for failure to comply with new recruitment obligations. Employers who violate LCA requirements could be fined up to $100,000 per violation and barred from applying for H-1B visas for five to 10 years. Displacing a U.S. worker could result in fines of up to $500,000 and permanent debarment from the H-1B program. The Labor Department would be required to regularly publish extensive program data.

Other visa categories would be affected as well. Under the proposed bill, foreign students with F-1 status would not be allowed to work, multinational employers would no longer be able to file blanket L-1 petitions, and the Diversity Visa program that grants 55,000 green cards to individuals from countries with low immigration rates to the U.S. would be terminated.

Cruz said that the bill “is a necessary effort to repair the H-1B visa program to prevent it from displacing American workers,” and that the proposal “aligns the program with its original intent.”

A detailed table of the bill’s provisions may be viewed here.

BAL Analysis: This proposed legislation would limit the number of individuals eligible for employment under the H-1B visa category, impose new obligations on H-1B employers and increase government oversight, with steep penalties for noncompliance. BAL will be working with clients to monitor and influence policy discussions. Please reach out to your BAL attorney if you have any questions regarding this legislation and how it would affect your business.

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