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February 24, 2017



On January 4, 2017 Congressman Darrell Issa a Republican from California introduced a bill that modifies the Immigration and Nationality Act with the respective provisions below:

  • raise the annual salary threshold of exempt workers to $100,000 from 60,000

  • eliminate the master’s degree exemption for H -1B dependent employers

The general definition of an H-1B dependent employer is one whose H-1B workers comprise 15% or more of the employer's total workforce. And H1B dependent employer must comply with specific provisions as specified further in this memo which specifically impose a record-keeping burden upon H1B dependent employers to inquire as to whether the placement of the H1B worker would potentially displace a US worker; verify if a US worker is being displaced that the employer at the worksite has made an offer to such a US worker; and maintain documentation on record of recruitment methods used to locate US workers.


However if an H1B dependent employer under current regulations, hires an individual who possesses a US Master’s degree in the related field of intended employment or pays a salary of at least $60,000 annually, then the H1B dependent employer is not required to meet the additional record keeping and inquiry requirements as such an individual would be categorized as an exempt H-1B worker. Obviously, hiring such an individual who’s been either paid $60,000 or who possesses a Master’s degree relieves the H1B dependent employer of this extra record-keeping burden and additional steps to ensure the non-displacement of US workers.


However Congressman Issa’s bill would now eliminate the exempt H1B worker and would raise the minimum salary of H1B workers to $100,000 annually. This bill may be questioned as to whether it potentially freezes the hiring of H1B workers and the ability of H1B employers to operate in the market as it raises an undue burden on employers to pay an extra $40,000 annually above the minimum salary requirement for an H1B worker.


Congressman Lofgren on January 24, 2017 introduced a second bill to curb the outsourcing of jobs by taking aim at curtailing abuse of the H1B program to prevent US companies from using H1B companies and cheaper employment by H1B workers. Specifically Congressman Lofgren states, “my legislation refocuses the H1B program to its original intent to seek out and find the best and brightest from around the world” ….. “It offers a market based solution that gives priority to those companies willing to pay the most.”


Congressman Lofgren’s bill preserves the H1B dependent employer exemption but:

  1. Raises the minimum salary of the exempt worker from $60,000 to above $132,000 annually which is a wage 35 percentile points above the median national wage (for computer/math positions) and eliminates the Master’s degree exemption for dependent workers.

  2. Replaces the prior four level wage system with a three level wage system adjusted to geographic region. The minimum wage ends up being the mean of the bottom two to three wage levels. The second level is a mean of all the three wages surveyed and the third level is the mean of the top two to three wage levels.

  3. Rewards employers who pay the higher level of wages by the following:

    • first employers paying 200% of level 3 prevailing wage, then 150% of level 3,

    • second employer is paying 200% of level 2 prevailing wage, then 150% of level 2,

    • third employers paying 200% of level 1 prevailing wage, then150% of level 1.

  4. Removes the country cap for employment-based immigrant visas



1. Record of Assurance of Non-displacement of U.S. Workers at Second Employer’s Worksite (Sec 655.738(e):


The regulation would require an employer seeking to place an H-1B nonimmigrant with another employer to secure and retain either a written assurance from the second employer, a contemporaneous written record of the second employer's oral statements regarding non-displacement, or a prohibition in the contract between the H-1B employer and the second employer.


The employer must make a reasonable inquiry and give due regard to available information and inquire about potential secondary displacement and to document those inquiries. Once the form or contract clause is created, this form or contract clause will be used uniformly for subsequent assurances making.

 a) Displacement: Non-displacement of the U.S. Workers in employer’s work force;

b) Secondary Displacement: Non-displacement of U.S. workers in another employer’s work force;

c) Recruitment and Hiring: Recruitment of U.S. Workers and hiring of U.S. workers


2. Offer of Employment to Displaced U.S. Workers pursuant to Section 655.738 (e):


In order to meet the provisions of Section 655.738(e)(1) of the regulations, the employer must document and retain the offer and the response to such offer.   H1b dependent employers placing an H1b worker at a third-party work site must inquire of the owner of the work site whether it has displaced a U.S. worker during the 90 days before the date the H1b is placed there and whether it intends to displace a US worker within 90 days after the date of placement of the H1b worker.


Additionally, the employer would be required to keep all the documentation concerning the departure of such employees and the terms of any offers of similar employment to such U.S. workers and responses to those offers. These records are required to determine whether the H-1B employer has displaced similar U.S. workers with H-1B nonimmigrant.


3. Documentation of U.S. Worker Recruitment:


The additional record-keeping burden required by these regulations is that the public disclosure file contains a summary of the principal recruitment methods used and the time frames in which they were used. This record keeping requirement may be satisfied by creating a memorandum of the file or the filing of pertinent documents. The Department of Labor upon further review has determined that the employers will not be required to maintain evidence of industry practice for recruitment.


Stay tuned to www.emandilaw.com for latest updates and news on immigration.

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