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Congress Passes Legislation Affecting Visa Waiver Program

Certain key provisions of the omnibus spending bill will affect travel without visas, e-Passport requirements, EB-5 investors, and H-1B and L-1 “dependent” employers.

Included in the omnibus spending bill, which the US Congress passed on Friday and now heads to the White House for signature, are several key provisions that affect the immigrant and nonimmigrant community. Chief among these are provisions to impose stricter security requirements on Visa Waiver Program (VWP) travelers; require “e-Passports” of all VWP travelers; reauthorize the EB-5 Regional Center and E-Verify programs through September 30, 2016; and raise the filing fees for certain H-1B and L-1 visa petitions.

Changes to Visa Waiver Program

The funding bill includes H.R. 158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which the House passed on December 8. This bill includes more restrictive passport requirements and other security standards for the VWP. Nationals of certain countries and travelers who, since March 2011, have traveled to Iraq or Syria, any other country designated by the secretary of state as a state sponsor of terrorism (e.g., Iran and Sudan), or any other country designated as a country or “area of concern” would be barred from using the VWP. Such travelers would be required to appear for a personal interview and obtain a visa in their passports at a US consulate overseas before traveling to the United States for business or tourism. Those who traveled to a country of concern in the course of military or government service on behalf of a VWP member country would be exempted from this requirement.

e-Passport requirement

Additionally, the bill requires all VWP travelers to present an e-Passport with a biometric-enabled chip by April 1, 2016. The bill also requires all VWP countries to put in place mechanisms to validate these e-Passports by October 1, 2016. VWP travelers who do not currently hold an e-Passport will need to apply for a new passport to meet this requirement. This may significantly affect all travel to the United States by nationals of any VWP country.

EB-5 Regional Center Program and E-Verify

The bill reauthorizes the EB-5 Regional Center Program through September 30, 2016, with no significant changes. Current EB-5 investment requirements will remain in place for another year. The E-Verify program has also been extended through September 2016.

H-1B and L-1 “Dependent” Fees

The bill doubled the filing fee for companies that have at least 50 employees with 50% of them holding H-1B or L-1 status. Such companies would have to pay a new fee of $4,000 for H-1B visa petitions and $4,500 for L-1 visa petitions and/or “blanket” L applications at a US consulate.

Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

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Eleanor Pelta  Morgan Lewis's, Labor and Employment law immigration and nation
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Eleanor Pelta is a partner in Morgan Lewis's Labor and Employment Practice. With her practice focused on immigration and nationality law, Ms. Pelta assists corporate clients in various industries with the international transfer of key personnel. She is particularly knowledgeable about managing high-volume employee transfers, as her background includes assisting employers in gaining temporary and permanent visas for all types of business, scientific and executive personnel. Additionally, she advises clients on strategic issues involving movement of staff internationally,...

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A. James Vázquez-Azpiri is a partner in Morgan Lewis's Labor and Employment Practice. Mr. Vázquez-Azpiri focuses his practice on business immigration law, assisting corporate clients with hiring and retaining foreign employees with regard to labor certifications, specialty occupation petitions and intra-company transfers. Mr. Vázquez-Azpiri is also a leading expert on immigration law compliance in the context of mergers, acquisitions and corporate restructuring. Mr. Vázquez-Azpiri helps clients think and work proactively by providing them with traditional compliance...

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Lisa Stephanian Burton is a partner in Morgan Lewis's Labor and Employment Practice. Ms. Burton counsels clients on a variety of labor and employment issues, including compliance with state and federal labor and employment laws and regulations; Occupational Safety and Health Administration (OSHA) matters; employment practices and policies; structuring the workforce; labor and employment implications of mergers and acquisitions; and hiring, firing, and reductions in force (RIF). She represents clients before state and federal agencies as well as before state and federal courts.

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