On
October 17 and 30, 2000, President Clinton signed into law several
bills which significantly change the H-1B program as well as the
employment based immigration program. Prominent among these bills
is the American Competitiveness in the Twenty-First Century Act
(AC21).
Q1:How does AC21 affect
the H-1B cap? A1: Section 214(g) of the
Immigration and Nationality Act (Act) sets an annual limit on
the number of aliens that can receive H-1B status in a fiscal
year.
For
FY2000 the limit was set at 115,000. AC21 increases the annual
limit to 195,000 for 2001, 2002 and 2003. After that date the
cap reverts back to 65,000.
Q2:Are
there new exemptions to the H-1B cap? A2: Yes. In addition to increasing
the cap, AC21 exempts H-1B workers who are employed by or have
an offer of employment from:
•
Institutions of higher education;
•
Related or affiliated nonprofit entity, or
•
Nonprofit or government research organization.
AC21
also specifies that an H-1B worker be counted against the cap
if the worker transfers from an "exempt" employer to
an employer that does not have an exemption.
In
addition, the FY 2001 cap does not include H-1B petitions filed
after INS reached the FY 2000 cap on March 22, 2000 but before
September 1, 2000. INS estimates that approximately 30,000 petitions
were filed during that time frame.
Q3:How does INS plan to
adjust its current counting method so that any petitions filed
prior to September 1, 2000 will not count against the FY 2001
cap? A3: The Service already electronically
captures the date a petition was received by INS. Therefore, our
ability to electronically separate cases file before 09/01/00
is already in place.
Q4:What steps has INS
taken to improve its counting to ensure that multiple beneficiaries
are only counted once as required by the new law? A4: The Service has conducted
sweeps of the H-1B data to identify multiple beneficiaries to
ensure that they are counted toward the cap only once in past
fiscal years. We will continue with that process insuring that
we conduct the sweep on using H-1B data for the past six years.
Q5:The bill requires that
INS may not count someone toward the cap if they have had H-1B
status in the prior 6 years, unless the individual would be authorized
for a new 6-year period of stay. How is INS going to implement
this? How does this differ from INS' current counting methodology? A5: INS is revising its regulations
to explain when an H-1B worker is eligible for a new 6-year period
of stay.
System
changes will be made in order to allow the Adjudicator to indicate
whether an individual who was previously H-1B is now eligible
for a new 6-year period of stay. This indicator will enable the
Service to properly count an individual toward the cap in these
circumstances.
Upon
approval of the petition, the program will compute the number
of H1B visas issued according to the factors as defined by statute.
Q6:The legislation states
that the limit for FY 99 is increased by "a number equal
to the number of aliens issued such a visa or provided such as
status" from the time the limit was reached and September
30, 1999. Is INS interpreting this clause to deal solely with
the discovered overage or does INS intend to recapture any visas
it issued before September 30, 1999 but had given FY 2000 start
dates? A6: The Service interprets
this language as forgiveness for the number of H-1B petitions
approved in excess of the FY99 cap due to counting errors. It
is not our intent to recapture numbers for cases approved in FY00
toward the FY00 cap.
Q7:When does the law take
effect? A7: Almost all of the provisions
of AC21 and the related legislation are effective immediately
upon enactment. The law was officially enacted on October 18,
2000. The sole exception is the increase in H-1B petitioner fee
from $500 to $1000, which takes effect on December 17, 60 days
after enactment.
Q8:Are there new exemptions
from the ACWIA (now $1,000) fee? A8: Yes. Employers now exempt
from paying the fee include:
• Institutions of higher education
and related or affiliated non-profit organizations;
•
Non-profit or governmental research organizations;
•
Any employer who is filing for a second extension of stay for
an H-1B nonimmigrant;
•
Primary or secondary education institutions; or
•
Nonprofit entity engaged in "established curriculum-related
clinical training of students".
Although
the fee increase does not take effect for 60 days, the new exemptions
from the fee are effective immediately. Thus the new exempt organizations
are exempt as of October 18, 2000. INS is working to change its
forms and systems to accommodate this change but this will take
time. In the meantime, petitioners claiming to be exempt should
submit a copy of the relevant provision of AC21 with their petition
along with evidence that they qualify as an exempt organization.
Petitioners should also note on Form I-129W the basis for the
exemption, notwithstanding the fact that the form will not initially
contain the necessary boxes to check for these new exemptions.
Q9:Are there any new filing
exemptions? A9: Yes. An amended H-1B petition
is no longer required when the petitioning employer undergoes
a corporate restructuring, including but not limited to a merger,
acquisition or consolidation, where the new corporate entity succeeds
to the interest and obligations of the original petitioning employer
and where the terms and conditions of employment remain the same
but for the identity of the petitioner.
Q10:Who is eligible to
use the H1B "portability" provisions? A10: The portability provisions
allow a nonimmigrant alien previously issued an H-1B visa or otherwise
accorded H-1B status to begin working for a new H-1B employer
as soon as the new employer files an H-1B petition for the alien.
Previously, aliens in this situation had to await INS approval
before commencing the new H-1B employment. These provisions apply
to H-1B petitions filed "before, on, or after" the date
of enactment, so all aliens who meet this definition can begin
using the portability provisions.
Q11:Are there any other
limitations on the portability provisions? A11:
An alien must have been lawfully admitted into the United
States. The new employer must have filed a "non-frivolous"
petition while the alien was in a period of stay authorized by
the Attorney General. A non-frivolous petition is one that has
some basis in law or fact. INS plans to further define this in
its implementing regulations. Subsequent to such lawful admission,
the alien must not have been employed without authorization.
Q12:How will employers
who hire H-1B aliens using the portability provisions comply with
their I-9 requirements? A12: Current regulations at
8 C.F.R. 274A.12(b)(20) authorize employment with the existing
employer after a request for extension of H-1B status is filed.
The alien in this case is employment authorized but the I-9 form
contains no provision for this authorization. Employers should
follow the documentation procedures they currently use for an
extension of this sort. Typically, this could involve attaching
a copy of the receipt notice for the filed petition along with
a copy of the alien's I-94 to the I-9 kept on file.
Q13:When will the Implementing
regulation be published? A13: INS is currently drafting
the regulation. Because of the new $1,000 fee increase, it is
possible that in addition to the normal DOJ and OMB review, this
regulation will have to undergo the additional review required
by the Small Business Regulatory Enforcement Fairness Act of 1996.
If this is the case it is unlikely that the regulation will be
published before March 2001. INS is exploring ways to expedite
publication of the regulation.
Q14:What benefits are
available under AC21 to aliens with Immigrant petitions/adjustment
applications? A14: First, § 104 of
AC21 lifts the per-country limits on employment-based immigrant
visa numbers if the total number of visas available during a calendar
quarter exceeds the number used. The Department of State is charged
with issuance of these visas and maintenance of priority dates
and availability. This issue will not be addressed in INS regulations.
Where
the country caps delay an alien's immigration notwithstanding
this provision, AC21 also provides for an extension of H-1B status
until the alien's adjustment of status application can be processed
and a decision made.
Finally,
AC21 gives extensions of H-1B status in one-year increments to
H-1B aliens who have an employment-based immigrant visa petition
or application for adjustment of status pending if It has been
more than 365 days since the visa petition or the labor certification
application has been filed. Note that the adjustment application,
labor certification, or visa petition need not necessarily have
been pending for a year to obtain this benefit. The only requirement
is that 365 days have passed since filing of the labor certification
or immigrant visa petition.
Q15:Will
H-4 dependents of H-1B nonimmigrants be able to receive these
extensions? A15: The AC21 does not address
this issue but speaks only of aliens issued a visa or otherwise
provided nonimmigrant status under the H-1B provisions of the
Act. INS is studying this issue, which will be addressed in the
implementing regulations currently under development.
Q16:How will employers
demonstrate I-9 compliance for H-1B aliens granted extensions
beyond the six-year period in INA 214(g)(4)? A16: Current regulations at
8 C.F.R. 274A.12(b)(20) authorize employment with the existing
employer after a request for extension of H-1B status is filed.
The alien in this case is employment authorized but the I-9 form
contains no provision for this authorization. Employers should
follow the documentation procedures they currently use for an
extension of this sort. Typically, this involves attaching a copy
of the receipt notice for the extension along with a copy of the
alien's I-94 to the I-9 kept on file.
Q17:The law requires that
any visas revoked due to fraud are recaptured and restored to
the total available for the current fiscal year. How does INS
intend to do this? A17:
INS already has the ability to electronically identify those cases
that are revoked due to fraud as opposed to those that are revoked
for other reasons. Therefore, this should not be an issue.
Q18:The law mandates INS
processing times of 180 days. Given the current budget situation
does INS feel that it can realistically meet this goal? A18: The new law does not
mandate any processing times. It does, however, indicate that
it is the sense of Congress that adjustment applications should
be completed in no more than 180 days and nonimmigrant petitions
should be processed in no more than 30 days. This sense of Congress
is followed by recognition that INS is in need of appropriations
for infrastructure and other improvements. INS will in the process
of collecting data in an attempt to comply with the reporting
requirements necessary to be eligible for consideration of appropriations
that may be granted to aide in the reduction of processing times.
There is no guarantee that Congress will appropriate funds for
the improvements necessary to reduce backlogs and improve processing
time within the Service even if INS complies with all of the reporting
requirements set forth in the statute.
Q19:Given the large increase
in the volume of applications, does INS feel that it can maintain
its current processing goals of 60 days for H-1B petitions and
90 days for I-140 petitions given that Congress has only earmarked
4 percent of the new H-1B fee for INS processing? A19: The Service will do its
best to maintain current processing times. Much of our ability
to maintain the processing times will be a result of the budget
that is passed and our ability to direct overtime funds to the
offices that will be impacted by the increased filings. Although
we have been authorized to hire individuals into term positions
to deal with the increased filings, the hiring and training process
are lengthy and the true benefits of the hiring will not be realized
for several months.
This
Visa News is in collaboration with www.usvisanews.com.This
monthly bulletin will bring you the latest on Visa and immigration
news which will be India-specific.
