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Bill Impacting How H-1B Dependency is Counted Emerges From Judiciary Committee

A bill first introduced January 5, 2017 has emerged from the House Judiciary Committee, where it has long languished, and may receive a floor vote in early 2018. We first discussed the bill here.

Ostensibly a bipartisan bill (it was introduced this time last year by California Representatives Republican Darrell Issa and Democrat Scott Peters), the bill changes the definition of “H-1B Exempt Employees” – those not counted towards an employer’s H-1B cap dependency - to “Employees making $100,000 or more” from “Either Employees making $60,000 or more OR who have Master’s degrees.” This change would include employees making between $60,000 and $100,000 per year in the count for purposes of determining which H-1B employees are counted towards determining whether an employer is “H-1B Dependent” where they were previously excluded, and eliminate the exclusion for workers with Master’s degrees.

An H-1B dependent employer (as is a “willful violator” – an employer with a prior finding of violation of the H-1B rules) has additional responsibilities beyond those of all other H-1B employers: an actual obligation to actively recruit US workers before hiring an H-1B (as opposed to just notifying of the intent to hire an H-1B), and an obligation to offer a US worker who is equally or better qualified than the proposed H-1B hire the job, and an obligation to attest that US workers won’t be displaced even indirectly. The changes would place more employers in that category.

When the bill was first introduced, there was much confusion online (including in much of the press) about what the bill actually did. It doesn’t impact how the “Required Wage” is determined currently, and wouldn’t impact most of the existing rules for most employers.