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New H-1B Legislation Summary
Makes Rollovers Much Faster

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The American Competitiveness In The Twenty-First Century Act ("Act"), signed by the President on October 17, 2000 and now effective, is popularly viewed as a law that increases the number of H-1B numbers, but it also contains other important changes in the Immigration and Nationality Act. These changes (and the increase in the number of H-1B visas available) will make it easier to employ and to continue to employ foreign workers, but at the same time will enable H-1B (and other nonimmigrant) workers more readily to leave their current employers.

In addition, in a separate law, the H-1B education and training fee, currently $500, was raised to $1,000 for each petition. This increase is effective two months after enactment of the Act, on December 17, 2000. That means that, on or after December 17, 2000, the fee for filing an H-1B (except when exemptions apply) will be $1,110.

The H-1B category under the Immigration and Nationality Act is commonly referred to as "High-Tech Visas" because a large percentage of those granted H-1B's are software engineers or programmers. In fact, however, any position requiring a Bachelor's degree (and any individual with a Bachelor's degree and/or its equivalent in experience in a discipline relevant to the position) can qualify for an H-1B.

The key provision of the Act is its increase in the number of individuals who can be granted H-1B visas or status in the current (FY2001) and next two years. The increase is to 195,000 each year from 115,000 the past year. Employer groups lobbied heavily for this increase because the prior years' limits have been exhausted in mid-fiscal year.

In addition, there are other provisions, which make it easier to employ and to continue to employ foreign workers. Some of the provisions are beneficial, but only to the hiring employer, not to the employer losing the services of the employee because of changes allowed by the Act.

We will need to await regulations from the INS as to its interpretation of many of this new Act' s provisions. In the interim, we offer the following summary of the employment provisions of the Act (other provisions address how a portion of the filing fees for the H-1B petitions are to be allocated for education and training of U.S. workers; scholarships; and grants and enforcement):

· Backlog Clearout: Except for petitions filed on or after September 1, 2000, the Act mandates that any backlog in H-1B cases in the two prior fiscal years are to be charged against these years (notwithstanding when approved) with the caps for these years being raised to accommodate the backlog. The result is that, except for petitions filed on or after September 1, 2000, the full number of 195,000 visas will be available for this fiscal year.

· Exemption from the Cap: The Act exempts from the H-1B cap individuals employed at higher educational institutions and their affiliated nonprofit entities, and individuals employed by nonprofit research organizations or governmental research organizations.

· Other Exemptions From the H-1B Cap: The Act provides that an individual granted an H-1B will not be counted toward the H-1B cap if the individual had H-1B status during the previous six years, unless the individual would be authorized for a new six-year period of stay at the time the petition is filed.

· Per Country Limits: The Act allows unused employment-based immigrant visas in a calendar quarter to be allocated in subsequent quarters without regard to per-country limits. The Act also provides relief to an individual who is unable to apply for permanent resident status ("green card") because of a per-country limit (An Application can be filed only if a visa number is available - often not the case for citizens of India and China in particular). The individual is able to extend his or her nonimmigrant status until able to apply for a green card and the application is decided.

· Portability of the H-1B Status: The Act changes the prior law. H-1B nonimmigrants now may change jobs upon the filing of a new petition by the new employer as long as the individual is in lawful status at the time of filing, has not engaged in any unauthorized employment since his or her last lawful admission and was lawfully admitted.

· Portability of I-140s and the Department of Labor Certifications (that U.S. workers, are unavailable, normally the first step in the green card process): The Act changes the law and allows individuals, who have filed for a green card and whose cases have been pending for 180 days or more to change jobs or employers without affecting the validity of their cases, so long as the new job is in "the same or a similar occupational classification" as the job in the pending filings.

· Recapture of Unused Employment-based Immigrant Visas: The Act provides that any employment-based immigrant visas that were available but unused in FY1999 and FY2000 are to be "banked" for use in future fiscal years if the demand for employment-based visas exceeds the overall cap for that year.

· Sixth-Year Extension for H-1Bs Awaiting Green Cards: The Act provides relief from the six year H-1B limit. It provides that if an H-1B's preference petition or labor certification has been pending for at least one year, the six year limitation does not apply and the H-1B's status may be extended in annual increments.