Senator Grassley Removes Hold from H.R. 3012, High-Skilled Immigrants Act

We are excited to share with you that Senator Grassley (R-IA) has lifted his hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act - the bill to remove per-country ceilings for a fair employment-based green card system that is "first-come, first-served."

Senator Grassley (R-IA) and Senator Schumer (D-NY) have worked out a deal on an amendment to HR 3012.

With this amendment in place, Senator Grassley has removed his hold on HR 3012 and supports the bill's passage in the Senate. Employers, including Microsoft, Cisco, Intel, Google, HP, Qualcomm and several other tech companies, are supporting HR 3012.

The Grassley amendment is a fair compromise that can clear the way for the removal of devastating and discriminatory per country caps for employment-based green card.

We offer reasonable fees and extensive immigration services to corporates. Call us today at 718.269.5999 or email at corporates@gehilaw.com to discuss your Employment-based Green Card cases. We are available to meet you in person or help you organize an immigration seminar at your corporate location.

HISTORY OF HR 3012

The Fairness for High-Skilled Immigrants Act, popularly known as H.R 3012, is an immigration bill introduced in the House by Rep. Jason Chaffetz (UT-3] and co-sponsored by a bipartisan group of 11 House members, including House Judiciary Chairman Lamar Smith (TX-21) and Immigration Subcommittee Ranking Member Zoe Lofgren (CA-16). This bill amends the Immigration and Nationality Act to eliminate the per country numerical limitation for employment-based immigrants and also adjusts the limitations on family visas without increasing the total number of available visas. As a net result, this bill will drastically reduce green card wait times for applicants from countries that are "retrogressed" due to backlogs in the Employment-based immigration system created by the 7% per-country limits.

CURRENT STATUS of HR 3012

  • Passed by U.S House of Representatives on November 29, 2011 by an overwhelming bipartisan vote of 389 to 15.
  • Currently pending passage in U.S Senate - bill enjoys widespread support in Senate as well.
  • Provisions of the Grassley amendment to HR 3012

    The Grassley amendment gives the Department of Labor increased authority to audit labor condition applications (LCAs) filed by some companies. Specifically:

  • An employer can be audited by DOL if it employs more than 100 employees AND more than 15% of those employees are H1B visa workers.
  • DOL can investigate an LCA if it has "clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate."
  • DOL may audit and investigate an employer under the above two cases after providing notice of intent to conduct an investigation, the only exception being if it is deemed that an advance notice of audit would interfere with the investigation.
  • If any employer is found not to be in violation after an audit, they will not be audited again for four years.
  • Because the vast majority of LCAs are filed by law-abiding employers who submit accurate LCAs with truthful information about both the employer as well as the employee, a large portion of LCAs filed will be unaffected by the above provisions.
  • Questions & Answers

    How will the DOL'a auditing role differ from the current procedure if the amendment becomes law?

    Currently, DOL only checks for completeness of an H1B LCA application and does not have authority to act on obvious signs of fraud and/or misrepresentation. It conducts audits of employers only on receiving a complaint and gives the employer an advance notice of audit. With the amendment, DOL may conduct audits as noted above in the summary. If it deems that an advance notice might allow companies to bury any evidence or audit findings, it may conduct the audit without advance notice. Section 3 (b) (7) amends clause a clause in the INA by describing the notice of intent to conduct an investigation. There is a reference that the determination by the DoL under that specific clause will not be subject to judicial review. This means that the decision regarding intent to conduct an investigation cannot be subject to judicial review i.e. the audit will be conducted as determined and the decision to conduct the same cannot be challenged in court. However, other parts of the investigation/audit, including any adverse results/decision of the investigation, can be subject to judicial review as with current audits.

    What does not change from the current system?

    There is much left unchanged by the proposed Grassley Amendment. Among policies not affected are:

  • The audit process and the information that DOL may request from a company during an audit does not change. The resources and budget of DOL are not being changed by this amendment either.
  • The penalties/process/remedies to be imposed if a company is found in violation of the law and the test of whether a company is found to be in violation of the law DOES NOT change from what it is today. (For both of the above, please note that the amendment refers back to existing sections in the Immigrant and Nationality Act.)
  • The definition of fraud and misrepresentation does not change. A fraudulent company today will be deemed equally fraudulent with the amendment provisions. The only difference is that the company has an increased probability of getting caught under the new law due to the higher likelihood of getting audited.
  • If the audit reveals no findings, just like today, there will be absolutely no impact on the LCA application other than a processing delay. There is absolutely no indication that the processing delays due to potential audits will be any more than what is seen today in audit of immigrant applications in other visa categories.
  • Does the amendment change anything about the original per-country limit removal bill language of HR3012? What is the effective date of the amendment?

    No. The original per country limit removal language as passed by the House is intact and is effective from FY 2012. The amendment is an addition and is only related to audits of employers who employ H1B employees. The amendment says nothing about the per country issue.

    How is an employee affected by the audit of an employer?

    The amendment targets employers, not employees. As under current law, however, an employee with an LCAs that is disallowed will have to file a new H1B application through a different employer. Under the proposed amendment, employers will be audited if there are clear indicators that certain details in the LCA are misrepresented (e.g., dubious employer profile or employee job details). If an employer is audited and the audit finds the employer in the clear, the employees' H1B application is not affected in any way. If the employer is found to be engaging in misrepresentation and fraud, the Labor certification (LCA) required for an H1B will be denied and the H1B application will be rejected.

    If my company is found to be fraudulent, will the amendment impact existing H1Bs and approved I -140s and Green Cards?

    No. The amendment is not retroactive, so it will not impact any existing H1Bs. Secondly I-140s are under the prerogative of USCIS, and DOL does not have the authority to rescind I-140s and Green Cards. This amendment does nothing to change that. Perm Labor certification and H1B Labor certification are completely different processes. The amendment gives authority to DOL to audit companies during the filing of H1B LCA, NOT during the filing of PERM LCA. The bottom line is that the provisions in this amendment are not retroactive and will have no impact on any past applications/petitions.

    Does the amendment mean that employers will limit H1B workers or let go of H1b workers to be under the 15% limit?

    The provisions only outline audit requirements. There is no limitation on the number of H1B employees that an employer can hire. There is no requirement/condition at all that employers stay below than 15% H1B employee level, as is being suggested on some forums.

    Will the possibility of getting audited by DOL make employers wary of hiring H1B workers, especially the large companies with a high number of H1b workers?

    Over 350 technology companies have signed and expressed their support for this bill and the amendment, including large companies who routinely have more than 15% of their workforce on H1B, like Microsoft, Intel, Google, Apple, Cisco and HP. If the amendment were a draconian anti-H1B law as suggested by some groups, these reputable companies that depend on the H1B program would not support it. Companies will continue to hire workers as needed. Companies not engaged in fraud have no reason to change their policies at all.

    We at Gehi & Associates will continue to monitor the progress of HR 3012 and keep you updated.

    Please call us today at 718-263-5999 or email us at corporates@gehilaw.com for a FREE consultation to determine if converting your EB3 case to EB2 is in your best interest.