On January 4, 2017, Congressman Darrell Issa introduced a bill called H.R. 170, the “Protect and Grow American Jobs Act.” According to Congressman Issa’s press release, this proposed legislation will make “important changes to the eligibility requirements for H-1B Visa exemptions.” As expected, the introduction of H.R. 170 has caused concern and restlessness among individuals hoping to obtain an H-1B nonimmigrant visa in the United States. One such concern arises from the misconception that this proposed bill will set the minimum salary for all H-1B workers at $100,000. This article will provide more clarity on the proposed changes and their potential effects on H-1B applicants.
The Bill Only Affects H-1B Dependent Employers
As of January 10, 2017, the actual text for H.R. 170 was not available on Congress’ website. According to the description of the bill, its aim is to amend the Immigration and Nationality Act to modify the definition of “exempt H-1B nonimmigrant.” Typically, an exempt H-1B nonimmigrant is relevant only to employers who currently employ a threshold number of H-1B workers in proportion to their total number of employees. These companies are called H-1B dependent employers. An employer is considered H-1B dependent if it has:
- 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
- 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
- 51 or more full-time equivalent employees of whom 15 percent or more are H-1B nonimmigrant workers.
Unlike regular employers, H-1B dependent employers must take additional steps in order to hire more H-1B workers; this includes advertising the job vacancy, documenting the recruitment, and giving fair consideration to any qualified U.S. worker who has applied for the position. However, even if an employer is H-1B dependent, it is not required to take these additional steps if the H-1B worker it is seeking to hire is categorized as an exempt H-1B nonimmigrant.
Proposed Amendment to the Definition of Exempt H-1B Nonimmigrant
The current definition of an exempt H-1B nonimmigrant is an individual that has an offered salary of at least $60,000 or a Master’s degree in a relevant field. H-1B dependent employers can freely hire these individuals without having to perform additional recruitment steps. Congressman Issa has stated that, because of these exemptions, a small number of companies have been able to hire large numbers of lower-cost H-1B workers, thereby displacing U.S. workers.
The proposed H.R. 170 seeks to change the definition of an “exempt H-1B nonimmigrant.” The bill’s sponsor wants to increase the salary threshold from $60,000 to $100,000 and wants to eliminate the Master’s degree exemption. Additionally, the bill includes inflation adjustment provisions that would allow for increases of the $100,000 salary threshold every third fiscal year commensurate with the percentage of increase of the Consumer Price Index.
Effects of the Proposed Changes
First, it is important to stress that this bill is still in its early stages. It has not been voted on by Congress and has not been passed. As such, the imminent H-1B cap season in April 2017 will likely be unaffected. Additionally, this proposed bill will only affect H-1B dependent employers. This bill does not require all H-1B employees to be paid at least $100,000 USD. If the bill, as described above, is passed, only employers that have hired a large number of H-1B workers will be affected. The industries that will be affected the most will be the IT and technology sectors. This includes companies such as Infosys Limited that hire consultants and provide business consulting, information technology, and outsourcing services. Employers who have not reached H-1B dependent levels are not affected by this bill.
There is no question that the concerns about H.R. 170 are exacerbated by the incoming presidential administration’s campaign platform of immigration reform. As described, H.R. 170’s effects would be limited to a small number of employers. However, future changes to immigration programs as a whole may have a greater impact on foreign workers and future immigrants to the United States.
Given the current uncertainty in immigration laws, it is vital to talk to immigration law specialists in order to ensure that valuable opportunities are not missed. If you are involved in an immigration case near Houston, TX please do not hesitate to speak with one of our attorneys.
Earvin Chionglo is a Partner at Nguyen and Chen LLP. He studied biochemistry at the University of Texas at Austin and law at the University of Houston Law Center. He utilizes his vast knowledge to assist clients primarily in matters of immigration, corporate, and employment law. His immigration practice focuses on obtaining employment-based nonimmigrant and immigrant visas for corporate clients and professionals, conducting extensive I-9 audits, obtaining family-based visas for individuals, and representing clients in immigration court proceedings. Earvin’s corporate practice ranges from the creation of new business entities all the way to facilitating acquisitions of companies and entities. His employment practice involves counseling employers on employment agreements, company handbooks, confidentiality and non-compete agreements, compensation issues, and so forth.