Summary of Senate Immigration Reform Bill S.744: What it Means for Information Technology (IT) Companies
In June 2013 the U.S. Senate passed a bipartisan comprehensive immigration reform bill, the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744). As of this date, the bill has been stagnating in the House of Representatives due to opposition from anti-immigrant members of Congress. If passed by the House, the reform bill could cause a seismic shift in the way that many Information Technology companies do business. The bill has both favorable and unfavorable features, and is particularly harsh on companies that rely very heavily on foreign workers.
On the immigrant visa side, the bill would eliminate the per-country limitation for employment-based immigrants, which would mean very significant progression in priority dates for Indian nationals. Currently Indian nationals face long backlogs in visa processing as compared to those hailing from other countries. The bill also creates a new merit-based, two-track path towards permanent residence. "Track One" visas, initially limited at 120,000, would create new avenues for intending immigrants meeting certain qualifying education, work experience, and other requirements. "Track Two" visas would be available to those with backlogged family and employment-based petitions, those who have been waiting for an immigrant visa for at least 5 years, and those who have been in the U.S. for at least 10 years.
The Senate bill would also impose sweeping changes to nonimmigrant temporary worker regulations. The annual H-1B cap would increase from 65,000 to 110,000, with provisions for further increases to 180,000 based on demand. Additional compliance requirements and filing fees would be imposed, particularly on large H-1B dependent employers. Notably, the bill would impose a $10,000 filing fee on companies with over 50 employees, over 50% of whom are H-1B or L nonimmigrants.
Most importantly, H-1B dependent employers (i.e. those companies employing a large proportion of H-1B workers based on a specific formula) would not be able to place their employees at third party worksites. Non-dependent employers could place H-1B employees offsite by paying a $500 fee. A key exception to this third-party placement restriction is that outplacement will still be allowed in cases where the intending immigrant has already begun the green card process. Since most H-1B workers wish to acquire a green card, the bill's restriction on outplacement is not as burdensome as it would seem at first blush.
The bill also allows H-4 dependents to work under certain circumstances, and requires USCIS to grant due deference to prior H-1B and L-1 approvals when considering extensions. Other titles in the bill enhance border security and expand the usage of the E-Verify system to prevent hiring of unauthorized workers.
On the whole, the Senate bill would serve as a net benefit to the IT industry en masse, as it would expand the ability of firms to employ H-1B workers. Higher filing fees and compliance burdens would be prohibitive for the largest H-1B filers, but the visa would remain a viable option for most IT businesses. And as noted above, the restriction on outplacement should not be too burdensome given the exception for employees undertaking the green card process.
Whether the House takes up the task of turning the Senate bill into law remains to be seen. As the economy expands, one can only hope that the country's employment-based immigration system keeps up.
Akshat Tewary is an attorney at the Law Offices of Kamlesh Tewary, P.C., with offices in Edison, NJ and New York, NY. His firm focuses primarily on employment-based immigration, employment law and corporate law issues. Akshat is currently a member of the American Bar Association, the American Immigration Lawyers Association and the New Jersey State Bar Association. He has been admitted to practice in New York, New Jersey, and before the United States Supreme Court.