Proposed Bills in House and Senate to Change H-1B and L Visa Programs

Representative Nancy Johnson (D-CT) and Senator Chris Dodd (D-CT) recently introduced similar bills that would alter both the L visa and H-1B visa programs. Bills H.R.2849 and S.1452 would make the following changes to these visa programs:

The two proposed bills would require employers to file an attestation with the Department of Labor (DOL) that declares the following:

· The L-1 visa holder will not perform any worksite duties of another employer,
· The employer will offer wages that are greater than or equal to the actual or prevailing wage, and
· The employer will not have displaced U.S. workers for 180 days prior to or after the filing of an L-1 petition.
The bills also provide for an annual review of all blanket petition procedures followed by the Department of Human Services and DOL. In addition, the bills propose to increase the work experience requirement from one year with the foreign employer to two years.
Additional changes the bills will implement include the following:

· L-1A visa durations will be limited to five years.
· L-1B visa durations will be limited to three years.
· L-1B petition employers petitioning for L-1B petitions must file an application that states the employer has attempted in good faith to recruit U.S. workers for the proposed position.
· The DOL will require a fee to be paid by employers petitioning for L-1 visas.

In regards to the H-1B visa program, the bills propose to remove the definition of H-1B dependent employers, and to make H-1B dependant provisions applicable to all H-1B applicants. They will also add dependent provisions to the DOL attestation requirements. These provisions include the following:

· The employer did not displace a U.S. worker 90 days prior to or after filing the visa petition.
· The employer will not place the H-1B employee at a third-party worksite, except in cases where there has not been displacement 180 days prior to or after the placement of the H-1B visa holder at that third-party location.

The provision also calls for making the $1,000 fee for the H-1B visa permanent.

TECH FIRMS VIE FOR US VISIT ENTRY-EXIT SYSTEM

Technology companies throughout the U.S. are preparing to bid on a new government project: the US VISIT program. US VISIT, to be implemented at the end of the year, will track every foreigner that crosses a U.S. border, air or sea port. While the program will depend upon existing technologies during its early stages, by May 2004, the Department of Homeland Security intends to award the development of US VISIT to one company, with the hope that a new system will be in place at all border crossings, air and sea ports by December 2005.

While development of US VISIT will most likely be awarded to one of the major U.S. defense firms, such as Lockheed Martin or Northrop Grumman, many smaller firms will most likely be involved in subcontracts and backbone development of the new technology. One such company is Minnesota’s Identix. Identix is the only company in the world that makes mobile biometric readers that scan two fingerprints. The US VISIT program scans two fingerprints and there will be many situations where a mobile scanner in necessitated (e.g.: embarking or arriving sea vessels).

However, there are major concerns related to the implementation of the US VISIT program. There are roughly 600 million border crossings per year. According to some government studies, the US VISIT program may add up to nine extra seconds wait time per border crossing. That accounts to up to 11 hour wait periods at certain border points; a wait time that would assuredly devastate international trade and cross-border traffic. Governmental officials, however, have stated to representatives of interested technological firms that the US VISIT program must not add more than two seconds additional time to border crossings.

Department of State Creates Interim Rule Limiting Personal Appearance Waivers for Nonimmigrant Visa Applicants

Although the Department of State (DOS) typically requires a physical interview for all nonimmigrant visa applicants, a variety of personal appearance waivers have traditionally been issued to various nonimmigrants in a range of nonimmigrant categories. However, in the post-September 11 U.S. environment, issues of national security led to more strict guidelines for consular officers and these officers began to physically interview many more nonimmigrant visa candidates.

In an effort to codify these changes, implemented both by the DOS and by consular officers, the DOS is issuing an interim rule to specify which personal appearance waivers will still be allowed to be granted. This interim rule will be effective August 1, 2003.

Consular officers may continue to waive the personal appearance requirement in six categories. According to DOS they are as follows:

·Children age 16 and under;

·Individuals age 60 years and older;

·A majority of applicants within the following visa categories: A, C-2, C-3, G, or NATO (note: these waivers do not apply to attendants, servants and personal employees);

·Nonimmigrants applicants seeking diplomatic or official visas;

·Nonimmigrant applicants who, within twelve months of the expiration of their previous visa, are seeking a re-issuance of a nonimmigrant visa in the same classification at the consular post of the alien’s usual residence, and for whom the consular officer has no indication of any noncompliance with U.S. immigration laws and regulations; and

·Nonimmigrant applicants who, based on concerns of national interest or because of unusual circumstances are warranted a waiver of personal appearance, as determined by a consular officer.

Please note that consular officers will no longer have the open-ended option to grant personal appearance waivers to applicants under the B, C-1, H-1, J and crew visas. There will be a 60 day period in which the DOS will accept written comments. Written comments should be submitted (two copies) to: Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, or by e-mail to visaregs@state.gov.

US Plans High-Tech System to Track Foreigners

Foreigners can soon expect to be electronically photographed and fingerprinted when entering the United States, under a high-tech new border security system.

“Through our virtual border, we will know who violates our entry requirements, who overstays and violates the terms of their stay and who should be welcome again,” said Asa Hutchinson, Under Secretary for Border and Transportation Security.

Biometric identification of the 23 million tourists, students and business travelers who enter US territory using a visa will begin January 1, 2004, Hutchinson said at a conference at the Center for Strategic and International Studies (CSIS) in Washington.

The tracking system, called US Visitor and Immigrant Status Identification Technology (US VISIT), will alert officials if an individual has terrorist connections, past convictions or visa violations. Foreigners will be screened when entering and leaving the country.

“In 99.9 percent of the cases, the visitor will simply be wished a good day and sent on their way. But with that small percentage of hits, our country will be made much safer and our immigration system will be given a foundation of integrity that has been lacking for far too long,” said Hutchinson.

He emphasised that currently there is no way of knowing when a visitor leaves the country if indeed he or she does, but under US VISIT, that will change.

Standing before an image of the Statue of Liberty, Hutchinson said last week’s tragedy in which 18 Mexican and Central American immigrants died while being transported in the back of an unventilated trailer “reminds us (that) people still risk their lives for the freedom and opportunity that America offers.”

“But today we face new and unprecedented dangers. Some who cross our borders do not yearn to breathe free. They yearn to destroy freedom. They do not seek a better life, but an opportunity to weaken America and to take innocent lives,” he continued, alluding to the 19 hijackers responsible for the terrorist attacks of September 11, 2001.

At least two of them could have been stopped if US VISIT had been in operation at that time, affirmed Hutchinson. One held a student visa but did not attend class and another had previous visa violations. He added that the new system is not designed to intimidate those coming to visit, work, or study in the US legally. “Good information does not threaten immigration … US VISIT will replace fear with knowledge,” he said.

Allotted 380 million dollars in the current fiscal budget, the program will be expanded to land border crossings in 2004 and eventually to every US consulate.

The United States will require its consulates to personally interview nearly all visa applicants, a measure that further complicates an already cumbersome process, said State Department officials last week.

Countries whose citizens do not need a visa to enter the United States will be urged to adopt biometric identification methods as soon as possible.

“We will not let visa waiver countries be a gap that terrorists can exploit,” said Hutchinson.

Laws passed after the September 11 terrorist strikes have strengthened US governmental authority to restrict immigration, drawing complaints from civil liberties groups.

Proposed Legislative Act Would Greatly Affect L-1 Visa Requirements

Congresswoman Rosa L. DeLauro (R-CT) plans to soon introduce an act that, if enacted, will greatly affect legislation regarding the L-1 “intra-company transferee” Visa. DeLauro’s “L-1 Non-Immigration Reform Act” would implement major restrictions on the visa. Currently, the L-1 Visa enables multinational corporations to bring foreign employees from overseas subsidiaries to the U.S. to work as intra-company transferees. These employees must have worked for the host company for one out of the last three years and the employees’ education must qualify them to work in the proposed positions. The L-1 Visa is applicable for one year (with the option of renewal for up to five years).

DeLauro’s proposed bill would change legislation related to the visa in the following ways:

1. A cap would be placed, allowing only 35,000 L-1 Visas to be issued per year.

2. Blanket petitions to hire L-1 Visa employees would be banned.

3. Firms that have fired U.S. workers within the previous six months would be banned from applying for L-1 Visas for a period of six months.

4. A prevailing wage requirement would be added to L-1 requirements, to ensure that U.S. workers would not be displaced by L-1 employees receiving lower wages.

5. L-1 employees would be required to have been working full-time for the petitioning company for three continuous years prior to entering the U.S.

6. The Department of Labor would be given the power to conduct ongoing surveys of employer compliance to these new regulations.

7. The Secretary of Labor would be given the authority to impose administrative limitations on employers not complying with L-1 Visa regulations.