The H-1B Visa Reform Act of 2004 was a part of Title IV of the Consolidated Appropriations Act, 2005 (sometimes also called the Omnibus Appropriations Act of 2005) in the United States that focused on changes to regulations governing H-1B visas. It was a successor to previous legislative changes affecting the H-1B, namely: the Immigration Act of 1990, American Competitiveness and Workforce Improvement Act (ACWIA) of 1998, and the American Competitiveness in the 21st Century Act (AC21) of 2000. The Consolidated Appropriations Act was signed by George W. Bush, then President of the United States, in early December 2004.
Contents
- Addition of some cap exempt slots for people with graduate degrees
- Changes to fee structure
- Renewal of LCA attestation requirements and expansion of DOL investigative authority
- Elimination of the 95 rule for the prevailing wage requirement
- Changes to Department of Labor investigative authority
- Formal lines of defense for employers
- References
Title IV of the Consolidated Appropriations Act had another component pertaining to immigration regulations, namely the L-1 Visa Reform Act of 2004, that pertained to L-1 visas.
Addition of some cap-exempt slots for people with graduate degrees
Prior to this Act, there were 195,000 slots available under the annual H-1B cap. Nonprofit research institutions were exempt from the cap, and people who had been counted towards the cap already (such as if they were transferring jobs or extending a 3-year H-1B by another 3 years) could apply without being counted against the cap as long as they weren't going over their 6-year limit.
The H-1B Visa Reform Act of 2004 effectively reduced the cap from 195,000 to 65,000 visas, but declaring exemptions for the first 20,000 applicants each year with graduate degrees. Specifically:
Changes to fee structure
The fee structure was changed as follows:
Renewal of LCA attestation requirements and expansion of DOL investigative authority
The Labor Condition Application (LCA) attestations that were introduced for H-1B-dependent employers and those who had committed willful misrepresentations recently were renewed. These attestations continue to be required as of 2015.
Elimination of the "95% rule" for the prevailing wage requirement
The "95% rule" for prevailing wages, where employers needed to pay only 95% or more of the prevailing wage, was eliminated: employers were now required to pay at least 100% of the prevailing wage.
Changes to Department of Labor investigative authority
The DOL was given authority to investigate when the Secretary of Labor personally certifies that there is reasonable cause to believe that the employer is not in compliance and authorizes the investigation, or when a credible source provides information that includes allegations that within the past 12 months an employer has willfully failed to meet an LCA condition, has engaged in a pattern or practice of violations, or has committed a substantial failure to meet an LCA condition that affects multiple employees.
Formal lines of defense for employers
Employers were given two recognized, standard lines of defense they could use in case of any investigation or identification of problems with their applications:
- Made a good faith attempt to comply;
- Voluntarily corrected the failure within 10 business days of having it explained by the DOL or another enforcement agency; and
- Has not engaged in a pattern or practice of willful violations.