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Changes to the Visa Waiver Program and Increases in L-1/H-1B Fees

On December 18, 2015, the President signed into law the 2016 Consolidated Appropriations Act (H.R. 2029) which included several immigration-related provisions. Some of the provisions include increases in the supplemental fees for L-1 and H-1B Petitions and changes to the Visa Waiver Program (VWP). The bill received overwhelming support from both Congress and the administration.

In addition to extending the EB-5, Conrad 30 program, and E-Verify programs through the end of FY 2016, the bill will increase the expired H-1B/L-1 fees for companies with more than 50 employees and companies where 50% or more of the employees hold H-1B or L-1 status. More specifically, the supplemental L-1 fees for 50/50 companies will increase from $2,500 to $4,500 and supplemental H-1B fees for 50/50 companies will increase from $2,000 to $4,000. The bill makes such fees mandatory for both initial petitions and extension petitions and authorizes these fees through September 30, 2025. The funds generated from these increases will be split between the 9-11 programs and the Biometric Entry-Exit program.

While some of the enhancements to the Visa Waiver Program are effective immediately, it is unclear how federal agencies would be expected to implement and enforce the new laws. The new laws impose new restrictions on the eligibility of certain individuals for the VWP and establishes new conditions to be met by Visa Waiver Program participating countries. Effective December 18, 2015, individuals who have been present in countries designated by the Department of Homeland Security (DHS) as supporting terrorism or “of concern” after March 1, 2011, are not eligible for Visa Waiver Program participation. Clear exclusions from the VWP are directed to nationals of Iraq, Syria, Iran, and Sudan and individuals who have been present in those countries. Note, as nationality laws differ among countries, it is important to observe the requirements of each respective country. In some cases, an individual may still be deemed a national even though they have never resided in, nor owned a passport issued by that country.

Exclusions are waived for persons serving in the armed forces of Visa Waiver Program participating countries or full-time government employees of a VWP country. DHS may also waive exclusion if it would serve national security purposes or law enforcement purposes of the United States.

The new conditions to be met by participating countries in the VWP include passport security requirements, screening protocols, information sharing, and revocation provisions for countries failing to meet the requirements. Some of these requirements take immediate effect and other are to be implemented within the next year.

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