NEW H-1B LAW SIGNED BY PRESIDENT CLINTON OCTOBER 17, 2000
Contents:
- H-1B Cap
- Backlog Clearout
- Exemption from the Cap
- H-1B Count
- Portability of H-1B Status
- Sixth-Year Extension for H-1Bs Awaiting Green Cards.
- Per Country Limits
- Portability of I-140s and Labor Certifications
- Recapture of Unused Employment-based Immigrant Visas
The President has signed the bill enacting the "American Competitiveness in the Twenty-First Century Act of 2000," a remarkable piece of legislation that makes dramatic improvements in the H-1B arena. A summary of some of the major provisions of this Act follows.
H-1B Cap
The Act raises the H-1B visa cap to 195,000 for fiscal years (FY) 2001, 2002, and 2003. Backlog Clearout
The Act 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 are raised to accommodate however many visas this would require. Exemption from the Cap
Individuals employed at higher educational institutions and their related or affiliated nonprofit entities,
and individuals employed by nonprofit research organizations or governmental research organizations will not be counted toward the H-1B cap. 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
The INS is prohibited from counting someone toward the H-1B cap if he/she has 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 (i.e., he/she has spent the twelve months preceding
the application outside of the United States). Portability of H-1B Status
H-1B nonimmigrants 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 and has not engaged in any unauthorized employment since his/her last lawful admission. This applies to change of employer
petitions filed prior to the Act's enactment as well. Sixth-Year Extension for H-1Bs Awaiting Green Cards
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. Per Country Limits
Unused employment-based immigrant visas in a calendar quarter may be allocated in subsequent quarters without
regard to per-country limits. Also, an individual who has an I-140 filed on his or her behalf and who would be subject to per-country limits will be allowed
to extend his/her nonimmigrant status until the adjustment of status application is decided. Portability of I-140s and Labor Certifications
Individuals who have filed for adjustment of status and whose cases have been pending for 180 days or more are allowed
to change jobs or employers without affecting the validity of the I-140 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 certification. Recapture of Unused Employment-based Immigrant Visas
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.)
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