H-1B Visa Reform Act of 2004
Source: NAFSA Newsletter

On December 8, 2004, President Bush signed the Fiscal Year 2005 Consolidated Appropriations Act (H.R. 4818) into law. This law incorporates the "H-1B Visa Reform Act of 2004," which contains significant provisions affecting the H1­B specialty worker category.

Status of regulations: At the time this advisory was last updated, DHS and DOL had not issued guidance or regulations on how these changes will be implemented.

Effective date: The statute becomes effective "90 days after the date of enactment." The date of enactment was December 8, 2004. The 90th day after that date is March 8, 2005. A December 8, 2004 USCIS press release referenced an effective date of March 8, 2004. However, a March 4, 2005 USCIS press release referenced an effective date of March 9, 2005.

Highlights of the H-1B provisions include:

1. New $500 anti-fraud fee. A new $500 "fraud protection and detection fee" will have to be paid by all employers (including institutions of higher education) who file an H-1B petition: a) initially to grant an alien H-1B status, and b) to allow an H-1B nonimmigrant to change employers. [Sec. 426].
   
2. 20,000 cap exemption for U.S. masters and higher. Up to 20,000 aliens with masters or higher level degrees from U.S. institutions of higher education will be exempt from the H-1B cap each year. Petitions for such individuals that are filed after the 20,000 exemptions are granted will be counted against the cap. Note: this does not impact the general exemption from the cap for individuals employed by institutions of higher education; that exemption remains. [Sec. 425].
   
   A March 4, 2005 USCIS Press Release states that "USCIS advises employers not to file H-1B petitions seeking to employ an H-1B worker who may benefit from these provisions until USCIS publishes guidance in the Federal Register. USCIS will reject any new H-1B petition that is filed in advance of the effective filing date as established in the forthcoming Federal Register notice."
   
3. 5 per cent rule eliminated. The H-1B and permanent labor certification "prevailing wage 5 percent rule," which considered employers paying no less than 95 percent of the prevailing wage as meeting the prevailing wage requirements, will be eliminated; employers will now have to pay at least 100% of the prevailing wage to comply with that wage requirement. [Sec. 423].
   
4. Wage survey wage levels increased from 2 to 4. Surveys used by the government to determine prevailing wages will have to provide at least 4 levels of wages commensurate with experience, education, and level of supervision. Currently, such surveys only provide 2 wage levels, which make it very difficult for employers of mid-level employees to meet the prevailing wage requirement. The provision also includes a formula for converting 2-level wage determinations to 4 levels. [Sec. 423].
   
5. Training fee reinstituted and made permanent for non-exempt employers. The H-1B training fee that had sunset on October 1, 2003 will be reinstituted and made permanent. Previously, the training fee was set at $1,000. Now, it will be $750 for employers with 25 or fewer full-time employees, and $1,500 for employers with over 25 full-time employees. Reinstitution of this fee would begin on the date the bill is signed into law. Institutions of higher education and non-profit entities or teaching hospitals affiliated with them, as well as nonprofit or governmental research organizations, will continue to be exempt from this training fee, however. Effective date: effective upon enactment, December 8, 2004. [Sec. 422].
   
6. H-1B dependency and special attestation requirements permanently reinstated. This law will permanently reinstate the requirement that employers determine whether they are "H-1B dependent" before filing a Labor Condition Application (LCA). It will also permanently reinstate the Recruitment and Hiring and Displacement and Secondary Displacement attestations that applied to “H-1B dependent” employers and to employers found to have committed a willful violation or misrepresentation of a material fact on the application. Both of those requirements had sunset on October 1, 2003. [Sec. 422].
   
7. DOL investigative authority expanded. This law will permanently reinstate DOL's authority to investigate LCA fraud and abuse, and will expand that authority to allow DOL to initiate investigations on its own, in addition to investigations based on a specific complaint. [Sec. 424].

OPT Applications Due in Early April
If you are planning on finishing your studies during Spring quarter and would like to apply for your Post-completion Optional Practical Training (OPT), you should apply not later than early April. The longer you wait to apply, the longer you will be waiting after graduation to start working. To apply for your OPT, you will need an application, which is available outside the OISS. If you are finishing your studies this quarter (Winter) and are planning on OPT, you must apply no later than March 18, 2005!

Need Dental Work?
The Loma Linda University School of Dentistry is looking for patients (you) who are willing to receive low cost treatment in exchange for having students do the treatment/work. If you are interested in receiving this low cost treatment, contact Barbara Samuel at (909) 558-7038.

NEEDED: 2 parking attendants to guide guests as they park for a wedding. Must be able to get to Cherry Valley. The date is April 10, 2005. Need to be there at 12:00p. The wedding starts at 2:00p, and you should be able to leave by 3:00p. Will pay each person $30. Please contact Dell Jean Van Fossen at 951-845-8839, or ex 2088.

Cafeteria Hours for Spring Break 2005

Mar. 18 - Regular Hours
Mar. 19 - EN 12-1:30p
Mar. 20-25 - EN 10a - 1:30p
Mar. 26 - EN 12-1:30p
Mar. 27 - EN 10a-1p, Regular Dinner hours.