2016 Omnibus Spending Bill Maintains DOL, NLRB Funding, Contains Mixed Immigration News for Businesses

Yesterday, we discussed important immigration legislation pending in Congress.  We can’t overlook the $1.15 trillion FY2016 Omnibus Appropriations Bill that Congress passed this week, though.  The Omnibus Bill avoided another government shutdown and funded most federal agencies through the federal government’s 2016 fiscal year, which ends on September 30, 2016. As with many omnibus spending bills, Congress buried in the Omnibus Bill a number of actions intended to restrict federal agencies’ activities and, in some cases, to make substantial changes to existing laws.

Congress Increases DOL Funding in 2016, Holds NLRB Funding Steady

The appropriations bill approved $12.2 billion in funding for the Department of Labor, an increase of $234.6 million over FY2015.  This includes $2.71 billion for the DOL’s Workforce Innovation and Opportunity Act (WIOA) Grants to states, which provide job training skills and assistance to low-skilled adults.  The DOL’s Wage and Hour Division got a small bump to $228 million, essentially flat from $227.5 million last year.  The Wage and Hour Division received less than what the Obama administration had sought, but still fared better than under either the House or Senate versions of the bills, which would have cut $12 and $18 million respectively.  However, Congress denied the DOL’s request for an appropriation to establish an Office of Labor Compliance that would implement President Obama’s “Fair Play and Safe Workplace” Executive Order, which would effectively “blacklist” federal contractors found to have engaged in certain wage and hour and other labor-related violations.

The National Labor Relations Board received $274.2 million again in 2016, the same level as 2015.  Both the House and Senate had sought substantial cuts in the NLRB’s budget that did not survive final negotiations on the bill.  The bill did prohibit the NLRB from promulgating electronic voting regulations.

Congress Loosens H-2B Restrictions, but Doubles Fees on Heavy H-1B and L-1 Visa Users

The most significant impact comes on the immigration front, where Congress took aim at a range of programs that will make life difficult for multinational companies and others that rely on immigration programs and the ability of employees to travel freely and easily to the United States.  On the positive side, the measure funds the processing of H-2B foreign labor certifications while blocking “the most controversial portions of the Department of Labor’s new H-2B visa program and wage regulations, which would inhibit the ability of small and large businesses to expand during temporary periods of peak seasonal demand in industries such as seafood processing, landscaping, hotel and lodging, recreation, and entertainment in cases where insufficient numbers of American workers are available,” according to the Senate report on the bill.  Among other provisions, the bill requires the DOL to accept private wage surveys in the H-2B program.  The bill also extends the EB-5 Regional Center Program through the end of the 2016 fiscal year in September 2016.

On the downside, the spending bill did curtail the Visa Waiver Program by prohibiting any person who has traveled to Iraq, Syria, Iran, or Sudan since March 2011 from using the Visa Waiver Program and requiring them to go through the lengthier process of obtaining a visa through consular processing.  It also strips Visa Waiver Program privileges from citizens of VWP-participating countries who hold dual citizenship status of Iraq, Syria, Iran, or Sudan.

More importantly, the bill also doubles the Public Law 111-230 fees paid by companies that make heavy use of H-1B and L-1 visa programs.  Consulting companies, Silicon Valley tech giants, and universities will be among most impacted by the change.  Public Law 111-230, which originally sunset at the end of FY2015 on September 30, applied higher visa processing fees to U.S. employers with 50 or more employees in the U.S. in H-1B, L-1A, or L-1B status.  Employers covered by the law were required to pay an additional $2,000 fee on each petition seeking H-1B nonimmigrant status on an initial petition or when porting H-1B holders from another employer.  L-1 petitioners (or those seeking to port L-1 holders) paid an extra $2,250 per petition.

The Omnibus Bill revives this fee, doubling it across the board.  Employers covered by the provisions will now pay $4,000 per H-1B petition and $4,500 per L-1 petition.  Additionally, the fees will for the first time apply to petitions seeking an extension, in addition to initial petitions and porting.  Like the previous law, these provisions are set to expire in 10 years (September 2025).  The Bill earmarks the additional fee revenue to pay for James Zadroga 9-11 First Responders Fund and USCIS’s biometric entry-exit programs. These fees are particularly expected to impact consulting companies that are heavy employers of H-1B and L-1 employees.

I’ll be back next Monday with an important note about one of my favorite once-in-a-decade topics: the Pay Period Leap Year.  Until then, for those of you who celebrate, Merry Christmas!