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CLINTON SIGNS NEW H-1B BILL INTO LAW
by Michael J. Gurfinkel, Esq.
The United States Congress approved,
and President Clinton has now signed, Senate Bill 2045, a measure
which provides, among other things: (1) increase in the cap for
working visas (H-1B) to 195,000 for the next three fiscal years
up to 2003; (2) extension of H-1B status in one-year increments
beyond the six-year minimum, to individuals who have pending Labor
Certification applications and employment-based petitions (I-140);
(3) an alien can begin working for a new employer upon filing
of an H-1B petition for change of employers, rather than waiting
for that petition to be approved; (4) an alien whose adjustment
of status has been pending with INS for more than 6 months may
change jobs or employers, if the new job is in the same or similar
job classification; and (5) funds to reduce backlogs in INS processing.
This is good news to many people who are in the
United States with H-1 B visas and awaiting their Adjustment of
Status based on their Labor Certifications, and to those hoping
to work in the United States on H-1B visas.
The approval of the Senate bill would confirm that
Congress has been re-thinking its position regarding immigration
issues. Lawmakers are beginning to realize that America needs
professionals and skilled workers to run its industries to sustain
economic growth. Hopefully, the approval of the H-1B bill is just
the start of a new dawn on U.S. immigration policies. The American
Immigration Lawyers Association (AILA) and business and immigrant
groups are still lobbying for the approval in Congress of several
other important pro-immigrant measures, including (a) due process
reforms for the overly harsh 1996 immigration laws; (b) the restoration
of Section 245(i), which would allow overstaying aliens to adjust
their status in the United States; (c) the NACARA parity; and
(d) the updating of the registry date from 1972 to 1986, which
would allow certain illegal immigrants who have continuously lived
in the U.S. since January 1, 1986 to obtain green cards.
Some of the highlights of the newly awaited H-1B
law, called the "American Competitiveness in the 21st Century
Act of 2000" are: H-1B Cap -- Increases the annual quota
of H-1B visas to 195,000 each year for FY 2001, 2002, and 2003
Backlog Clearout -- The bill mandates that all H-1B cases approved
in 1999 after the cap was reached and before October 1, 1999 are
counted against the FY1999 cap, and all cases filed before September
1, 2000 are to be counted against the FY2000 cap, regardless of
when they are approved. The caps for those years were raised to
accommodate the visas which may be required by the above credits
to either the 1999 or 2000 caps.
Exemption from the Cap å Individuals employed at
higher educational institutions and their related or affiliated
nonprofit entities, and individuals employed by nonprofit research
organizations or governmental research organizations are not counted
toward the H-1B numerical cap. (Exemption from the cap for foreign
graduates of U.S. masters or Ph.D. programs is deleted). Also,
H-1B physicians who have received a J-1 Conrad 20 waiver of the
two-year home residency requirement are exempt from the cap. Anyone
exempt from the cap by virtue of their employment with one of
the entities described above who subsequently changes employers
to one that is not described would be counted toward the cap in
the year they change employers.H-1B Count -- Prohibits the INS
from counting someone toward the H-1B cap if they have had H-1B
status in the previous 6 years, unless the individual would be
authorized for a new six-year period of stay at the time the petition
is filed.
Portability of H-1B Status å H-1B non immigrants
may change jobs upon the filing of a new petition by the new or
prospective employer rather than having to wait for the petition
to be approved, and has not engaged in any unauthorized employment
since his or her last lawful admission. Portability of I-140s
and Labor Certifications å Allows individuals who have filed for
adjustment of status and whose cases have been pending for 180
days or more to change jobs or employers without affecting the
validity of the I-140 petition or underlying labor certification,
as long as the new job is in "the same or a similar occupational
classification" to the job in the original petition and labor
cert. Recapture of Unused Employment-based Immigrant Visas å 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. (This shall take
place in addition to any "spill up" of unused visas
to the family preferences that would otherwise occur.)
Sixth-Year Extension for H-1Bs Awaiting Green Cards
å Provides that H-1B nonimmigrants for whom an I-140 has been
filed, and whose labor certification or I-140 was filed at least
365 days prior, may obtain extensions of their H-1B status beyond
the six-year maximum, in one-year increments, until their adjustment
of status or immigrant visa application is decided.
Recovery of Fraudulent Visas å Provides that for
any H-1B petition revoked for fraud or willful misrepresentation,
the visa number shall be added back to the cap in the year the
petition is revoked, regardless of when the visa was actually
issued.
Backlog Reduction Provisions å The bill provides
for the creation of a new Immigration Services and Infrastructure
Improvement Account (and authorizes appropriations to fund this
account) in order to reduce INS processing time of all cases to
less than 180 days and eliminate the backlog of pending cases.
The bill requires INS to provide a backlog elimination plan to
Congress within 90 days of the enactment of the bill, and annual
reports on their service provision situation and progress toward
improvement.
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