On October 17, 2000 President Bill Clinton signed into law the “American Competitiveness in the 21st Century Act of 2000”. [Hereafter “The Act”]
This Act has significant ramifications not only for the short term but also – and perhaps more importantly – for the long term. The Act acknowledges the foreign workers’ critical role in driving the United States’ booming economic engine. In addition, it creates special funding, grants for non-profit organizations, and calls for studies of the “Digital Divide” which may perhaps be a factor which could slow down the U.S. economy. This article will focus only on the employment related provisions of the Act, i.e., developments concerning the short-term H-1b visa and the implications for immigrant visas.
Increase in the H-1b cap for the next three fiscal years: H-1b visas are increased to 195,000 for fiscal years 2001, 2002, and 2003. Fiscal year 2001 begins on October 1, 2000. Fiscal year 2003 will end on September 30, 2003. The dramatic increase in the H-1b numbers was caused by substantial pressure especially from the high-tech industry lobby. Thanks to that pressure, all sectors of the economy will benefit.
Likewise, the INS has been criticized for its failure to properly count H-1bs toward the cap for fiscal years 1999 and 2000. The Act puts these issues to rest by adjusting the cap upward for fiscal years 1999 and 2000 to include as many visas were actually issued by the INS. This eliminates the need for any visas to be subtracted from the current fiscal year 2001 H-1b quota. Additionally, H-1b visas which were granted during the summer months of 2000 and were to be counted against the cap for fiscal year 2001 were also counted in the cap for fiscal year 2000. Therefore, fiscal year 2001 began on October 1, 2000 with a full allotment of 195,000 H-1b visas that could be issued. This number is certainly a tremendous advancement for H-1b users, as in prior years, the H-1b quota had been exhausted as early as May of the calendar year. This left a period of 4-5 months where the INS could not issue H-1b visas for first time new employment (e.g.: May 2000 – September 2000).
In another significant development, H-1b visas issued to institutions of higher education or related or affiliated non-profit entities or non-profit research organizations or governmental research organizations are not to be counted against the cap. Therefore, in effect there will be no limitations on approval of visas for such institutions. Consequently, even if the 195,000 cap is reached for H-1b visa issuance, alien employees at these institutions will not be effected. Such employees should continue to receive H-1b visas.
In keeping up with the ongoing tradition of regularly increasing fees, Congress simultaneously passed another law which the President also signed, which authorizes the current H-1b filing fee of $500.00 to be increased to $1,000.00 effective December 17, 2000. This $1,000.00 filing fee is in addition to the $110.00 base fee for H-1b applications. Therefore, as of December 17, 2000, the H-1b fee will go up to $1,110.00. As with the $500.00 fee the $1,000.00 fee must be paid by the employer and cannot be claimed from or reimbursed by the foreign employee.
The long-term solutions enacted by Congress were even more surprising. In the past, the Immigration and Nationality Act has imposed a rigid structure of quotas on immigrant visa applications. An immigrant visa application means – for purposes of simplicity – an application for a “green card”. Since under the “quota” system, only a limited number of green cards could be issued to citizens of a certain county every year, some countries developed significant backlogs for immigrant visas issued through employment (Backlogs also exist for family-based immigrant visas, but are not addressed under the Act). The most notable backlogs were for applicants born in India or China. In some of the employment-based categories, Indians and Chinese could have to wait 2-3 years before they could apply for a green card. This represented significant problems because such nationals were also limited by the terms of their non-immigrant visas, mostly H-1b. Since the H-1b is valid for a maximum of 6 years, if a non-immigrant worker “ran out of time” on his or her H-1b, he or she would have to possibly leave the United States and apply for an immigrant visa overseas. Consular processing is a process that may be fraught with additional unforeseen complexity.
The American Competitiveness in the 21st Century Act did away with this concern. The Act addresses the shortage of immigrant visas in three ways.
First, the Act “recaptures” immigrant visas (i.e., “green cards”) that should have been issued by the INS in the prior 2 fiscal years (1999 and 2000) but were not issued because of the INS’ backlogs. Those unissued visas will now be added to the quota of immigrant visas available to be issued and will therefore not be lost. This represents a significant number of additional visas which will be “banked” and can be allocated during fiscal year 2001 and onward.
The second method in which the Act affects immigrant visas is by a reallocation of unused visa numbers which have been set aside for countries which do not use the full quota allotted to them. As mentioned previously, India and China tend to be the leading users of employment based immigrant visas. Those countries are “oversubscribed”, which means that there are many more foreign workers of Indian and Chinese origin waiting for immigrant visas than the number of available visas. Since other countries do not fully use their quota of the employment – based immigrant visa, this quota can be used for Indian and Chinese – born immigrant workers.
Finally, immigrant workers not subject to the per-county limits who are otherwise eligible to apply for a green card, but who cannot apply for one due to delays by the INS and/or the Department of Labor may apply for an extension of their H-1b status over and above the currently permitted six years. That extension would be granted on a year – to – year basis. Such an extension would be granted only if an immigrant worker has a pending Labor Certification application or a pending application for an immigrant worker, and such application has been in process for more than 365 days (one year) but has not yet been approved either by the Department of Labor or by the INS, respectively.
Alternatively, immigrant workers who cannot apply for a green card due to per-county limits (e.g. India/China) can get a “one-time” unlimited duration waiver of the 6-year H-1b limitation. This one-time waiver does not need to be renewed on a year-to-year basis as with the above exception.
Under the current law, an alien worker who is already classified as a H-1b professional worker cannot change employers until a new H-1b petition is filed by a new employer and that new petition is approved by the INS. This process can take anywhere from two to four months, depending on the INS’ workload and efficiency. For more on the criteria for obtaining H-1b status, please see “The H-1b Work Visa Application Process” elsewhere on this website.
Under the new law, a H-1b worker can change jobs as soon as his or her new employer files a petition for a new H-1b classification with the INS! This means that an H-1b worker can potentially go to work for a new employer in two weeks or maybe even sooner! However, as with any good thing, there is a word of caution. The Act states that the H-1b worker is authorized to accept new employment upon the filing of a prospective employer of a new H-1b petition for such alien. The employment authorization will continue for the H-1b worker until the new petition is adjudicated. However, the Act clarifies that if the new petition is denied, the employment authorization will cease. Further, this means that the alien worker has no employment authorization while an appeal is pending.
What does this mean? Quite simply, this means that unless the alien worker and the new employer are quite certain that the H-1b petition will be approved, it would be unwise for the H-1b worker to leave his or her current employment and go to work for the new employer. For example, the Act specifically lists one of the grounds for denial of a new H-1b visa as employment without authorization by the H-1b worker at any time after admission. This would include employment without authorization even while the H-1b worker may have been on a student visa or as a business visitor. If such unauthorized employment became known to the INS, the new H-1b petition would certainly be denied and the alien’s employment authorization would cease. In another example, if the employment did not qualify as a “specialty occupation”, thereby meriting H-1b status, the application would be denied.
Adjustment of status (“green card”) applications are currently taking anywhere from 18 to 24 months for processing at the Regional Service Centers. Under the Act, if an adjustment of status application has taken more than 180 days to process, then an alien whose application for adjustment of status is based on approval of an employment based immigrant visa can switch jobs. By switching jobs, the alien will not lose his or her previously approved labor certification or immigrant worker petition. Those approvals will remain valid provided the employee changes to a new job which is in the “same or similar occupational classification as the job for which the petition was filed.” A description of the labor certification process is set forth on this website in the article “The Long and Winding Road to Labor Certification”.
Again, this immigrant visa portability clause has significant ramifications for an alien immigrant who is waiting for adjustment of status. Just as the law permits extensions of an H-1b over and above 6 years, likewise the new law permits changes of employers where an adjustment of status application has been pending for 180 days or more. It is the sense of Congress, as recorded in the Act, that the INS should not take more than 180 days to make a decision on applications for immigrant benefits. However, by allowing an alien worker to switch jobs while an application for adjustment of status is pending, the Congress may have done business a disservice. It is now possible for an alien employee to retain a priority date on an approved labor certification or an approved immigrant petition and change jobs, moving to a new employer without abandoning an adjustment of status application. Therefore, INS delays may potentially result in employers losing valuable employees.
The Act imposes some sense of urgency in non-immigrant and immigrant visa processing by codifying Congress’ displeasure with inexplicably lengthy INS processing times. This displeasure – one would hope – may spur the INS to increased efficiency. Keep in mind that the INS will need to promulgate regulations to implement the Act. Those regulations may clarify some of the new law and may modify the interpretation of the Act as set forth in this article.
The remainder of the Act relates to allocation and use of the filing fees authorized by the Act, awards of grants for workforce training, reports to be generated by the National Science Foundation and the INS, and a variety of other administrative issues. Since those issues are not germane to a discussion of employment-related immigration provisions of the Competitiveness Act, those provisions are not discussed here.
In conclusion, the “American Competitiveness in the 21st Century Act” has brought a breath of much needed “fresh air” to the H-1b/Immigrant visa /Adjustment of Status nightmare that workers and employers have been facing over the last three years. Given the American economy’s tremendous growth, the Act lays down what appears to be a food, solid, foundation to continue that strong growth. The Act will certainly help maintain America’s leadership especially in the high technology area. The Act recognizes that foreign workers should enjoy the same freedoms in choice of work and benefits as their American counterparts and lifts or loosens most of the restrictions which previously tied foreign workers to their U. S. employers for indefinite and long term periods.
Copyright, Farhad Sethna, 2000; All Rights Reserved.