The House and Senate have both approved the terms of the “Consolidated Appropriations Act, 2016,” also commonly referred to as the Omnibus budget bill. This bill is primarily focused on setting the budget for a wide range of federal agencies and programs, but this year’s Omnibus budget bill also contains several changes to U.S. immigration law. The bill is expected to be signed into law by President Obama immediately. As a result, we are likely to see changes to a number of areas of immigration law from the bill.
First, the bill reauthorizes the Conrad 30 J-1 waiver program for an additional year without any substantive changes. The Conrad program allows U.S-trained foreign national physicians to obtain a waiver of the normal requirement that they return to their home country after completing graduate medicine education in the U.S. in J-1 status by agreeing to work in a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or with a Medically Underserved Population (MUP) for a period of at least three years. While it is important that Congress extended the Conrad program, there were a number of improvements for which we actively advocated and were under consideration during the negotiations, but unfortunately Congress did not include the improvements in the final bill. Similarly, the Omnibus budget bill will reauthorize for an additional year without substantive changes the EB-5 Regional Center program, E-Verify, and the Non-Minister Religious Worker Program.
Second, the bill will make changes to the Visa Waiver program with the goal of improving security relating to that program. All Visa Waiver travelers will be required to present an e-passport with a biometric-enabled chip by April 1, 2016, meaning that travelers who do not currently hold an e-passport with a biometric-enabled chip will be required to obtain a new passport in the coming months to be able to continue to travel under Visa Waiver. In addition, anyone who has traveled to Iraq, Syria, Iran, or Sudan, or any other country designated by the Secretary of State as a state sponsor of terrorism since March 2011 would be prohibited from using the Visa Waiver program. There has not yet been a detailed explanation of how the Department of State will implement this restriction or how it will affect individuals already registered for the Visa Waiver program. If this requirement is implemented across the board to all Visa Waiver travelers, many individuals who have relied on Visa Waiver for travel in the past could be required to obtain a B-1/B-2 visa stamp from a U.S. Consulate abroad.
Third, the bill reauthorizes and increases the H-1B and L-1 Border Security Fee, which had expired on September 30, 2015. Under the terms of the Omnibus budget bill, employers with 50 or more employees in the United States, more than 50 percent of whom are in H-1B or L-1 status, would pay an additional $4,000 fee for each covered H-1B petition and an additional $4,500 fee for each covered L-1 filing. This increased fee appears to be specifically targeted toward IT consulting companies that have a very large population of H-1B and L-1 workers relative to their overall U.S. workforce, and is not applicable to companies with fewer than 50% of their U.S. workforce in H-1B or L-1 status.
Finally, the bill would make a number of changes to the H-2B program which is used by employers seeking to hire seasonal or short-term need workers. The bill modifies the way in which the quota on that program is applied so that certain “returning” H-2B workers will not be subject to the quota. In addition, the bill modifies prevailing wage requirements for that program, and allows employers in the seafood industry to have more flexibility in the use of the program.
While reauthorization of the Conrad 30 program and other expiring immigration programs such as the EB-5 Regional Center program is important, the bill unfortunately represents a missed opportunity to make important and needed improvements to these programs. In addition, the implementation of the changes to the Visa Waiver program could result in travelers who have for years utilized that program for business and vacation travel suddenly needing to obtain a new passport or a B-1/B-2 visitor visa stamp on very short notice. SPS Immigration PLLC is monitoring the implementation of these changes and will provide further information as it becomes available.