Possible H-1B Filing Mechanics Under The Gang of Eight’s New Immigration Reform Bill (S. 744)

S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, will definitely change the way Employers file H-1B Petitions on behalf of prospective employees.  What would an H-1B filing look like if such a law passes?

Here is the FULL TEXT of S. 744.  Title IV, Subtitle A is where the portions on immigration begin.  It begins on pp. 674 of an over 800 page document!

An early question for H-1B employers is typically, what is the required pay for the prospective employee?  Prevailing wages will likely increase with the referenced calculation systems.  The Center for Immigration Studies (“CIS”) has released an excellent summary of S. 744.  The summary states, ‘We prevent H-1B workers from undercutting the wages paid to American workers by requiring employers to pay significantly higher wages for H-1B workers than under current law and to first advertise the jobs to American workers at this higher wage before hiring an H-1B worker.  So, wages will increase for H-1B employees and employers will have to figure that into their calculations.  It looks like employers will minimally pay higher than prevailing wage

The Act also states:  Not later than 90 days after the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act, the Secretary of Labor shall establish a searchable Internet website for posting positions as required by paragraph (1)(C). The CIS summary further states:  We require recruiting of American workers prior to hiring an H-1B nonimmigrant…We require employers to post a detailed job opening on the Department of Labor’s website for at least 30 calendar days before hiring an H1B applicant to fill that position.

How would the mechanics work for an H-1B filing if this becomes law then?  This year, we saw that the timing of a filing is crucial.  In the first five days of H-1B filings which ended on April 5, USCIS received approximately 124,000 petitions.  S. 744 will raise the cap from 65,000 to 110,000.  The 20,000 advanced degree exemption from U.S. schools will be raised to 25,000, but only for STEM graduates.  The Cap could increase to 1800,000, but the most it can increase each year would be 10,000 visas.  Hypothetically, say that S. 744 is law today and by its second year the Cap increases by 10,000 to 120,000 total.  Based on this year’s filings,   you would still run out of numbers again after 5 days.  Perhaps not everyone will file in the first five days, knowing that more numbers are in existence.  Regardless, the timing of H-1B filings will remain important to Employers.  They will still have to file early.

Here is how the filing mechanics would work as I see it:

1. Prevailing wage/salary computation analysis
2. Labor Condition Application:  normal processing time of 10 business days
3. File H-1B petition in the first week of April or as early as possible and hopefully receive a cap number
4. Advertise for the position on the DOL’s website for 30 days prior to hiring the H-1B.
5. Assuming a successful recruitment and no further objection from DOL, the H-1B could start October 1.

The actual hiring of the H-1B employee would be October 1, the beginning of the USCIS fiscal year.  My assumption is that an H-1B employer who files, pays and receives a Cap number would then do recruitment in August or September.  If employers receive qualified applicants, they would likely have to interview them.  This could push back an October 1 starting date pending DOL approval.  I also assume a company would not have to recruit prior to the initial H-1B filing and receiving a Cap Number.  That would be a diabolical measure if a petitioning company were required to recruit prior to filing the LCA and the I-129 petition.  What would happen if such a company then did not receive a cap number?  To make a company recruit before receiving a visa number just does not seem fair.  It could not happen, could it?