Sweeping Bill Would Impose New Requirements on H-1B, L-1 Visas

June 05, 2020

A bipartisan bill would amend wage requirements for H-1B workers, prohibit the replacement of American workers with H-1B workers, and for the first time set wage requirements on L-1 visa workers, among several other requirements.

The H-1B and L-1 Visa Reform Act (S. 3770) would require employers to pay H-1B workers the highest wage from three categories:

  • The locally determined prevailing wage level for the occupational classification in the area of employment;
  • The median average wage for all workers in the occupational classification in the area of employment; or
  • The median wage for skill level two (second lowest of four) in the occupational classification found in the most recent survey by the Department of Labor’s Bureau of Labor Statistics.

Employers seeking to hire H-1B workers would be required to publish job postings available to U.S. workers on a website established by the Department of Labor for at least 30 days before filing a labor condition application (an initial step in the H-1B application process).  Additionally, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers.

Companies petitioning for H-1B workers would be required to provide a copy of any earlier H-1B workers’ W-2 forms to DOL to prove that they paid the earlier H-1B workers the appropriate wage. 

The law would expressly prohibit the replacement of American workers with H-1B workers.  Moreover, the period of time during which an employer who hires H-1B workers may not lay off or displace their current American workers would double from 90 to 180 days. 

The outsourcing or leasing of H-1B workers to other employers would be generally prohibited, with an avenue for employers to seek a waiver from the outsourcing prohibition, provided the employer can show that no U.S. workers will be replaced as a result and that the worker will not be a de facto employee of the employer with which the worker will be placed.

The bill also grants DOL significantly greater authority to investigate and enforce alleged H-1B infractions. 

Fines increased:  Administrative fines per violation would increase from $1,000 to $5,000 and from $5,000 to $25,000 for willful misrepresentation.  Additionally, the maximum fine for a willful failure or misrepresentation resulting in the displacement of a U.S. worker would increase from $35,000 to $150,000.

For the first time, minimum wage levels for L visa workers (identical to the bill’s requirement for H-1B workers) would be set.

Looking ahead:  If it can gather steam, it would likely be signed by President Trump, who is drafting an executive order placing further restrictions on H-1B workers.