DOS Cable on AC21
SUBJECT:
A NEW H1-B LAW: THE AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT OF 2000
1. ON OCTOBER 17TH, THE PRESIDENT SIGNED HR 2045, A BILL
TO AMEND THE IMMIGRATION AND NATIONALITY ACT WITH RESPECT
TO H-1B NONIMMIGRANT ALIENS. TITLE I OF THIS LAW IS KNOWN
AS THE "AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST
CENTURY ACT OF 2000" AND CONTAINS NUMEROUS AMENDMENTS TO
THE INA WITH REGARDS TO H-1B AND EMPLOYMENT-BASED IMMIGRANT
VISAS. THE FOLLOWING IS A SUMMARY OF THE KEY CONSULAR-
RELATED CHANGES CONTAINED IN THE ACT.
CHANGES TO THE H-1B ANNUAL LIMIT
2. SECTION 102 OF THE ACT RAISES THE ANNUAL CAP FOR H-LBS
FOR FISCAL YEARS 2001, 2002, AND 2003 TO 195,000 PER YEAR.
THE ACT RETROACTIVELY RAISES THE FY99 ANNUAL CAP TO THE
NUMBER OF ALIENS WHO WERE ACTUALLY GRANTED H-1B STATUS
DURING THAT YEAR AND RETROACTIVELY RAISES THE FY2000 ANNUAL
CAP TO THE NUMBER OF ALIENS WHO WERE, OR MAY BE, ISSUED
VISAS OR OTHERWISE GRANTED STATUS BASED ON PETITIONS FILED
BEFORE SEPTEMBER 1ST, 2000. THIS LATTER PROVISION MEANS
THE FY2001 COUNTER WAS EFFECTIVELY RESET TO ZERO ON AUGUST
31TH OF THIS YEAR. THE LARGE NUMBER OF H-1B PETITIONS THAT
HAD BEEN APPROVED DURING THE SUMMER FOR FY2001 EMPLOYMENT
(AND COUNTED AGAINST THE FY2001 CAP) WILL NOW BE CHARGED
AGAINST THE FY2000 CAP.
CERTAIN H-1B PETITIONS EXEMPT FROM THE ANNUAL LIMIT
3. SECTION 103 EXEMPTS FROM THE ANNUAL CAP H-1B ALIENS WHO
ARE EMPLOYED (OR OFFERED EMPLOYMENT) AT (A) AN INSTITUTION
OF HIGHER EDUCATION OR A RELATED OR AFFILIATED NONPROFIT
ENTITY; OR (B) A NONPROFIT RESEARCH ORGANIZATION OR A
GOVERNMENTAL RESEARCH ORGANIZATION. HOWEVER, IF THE ALIEN
LEAVES THE EXEMPTED EMPLOYMENT AND OBTAINS EMPLOYMENT WITH
A NON-EXEMPT EMPLOYER, THE ALIEN MUST BE COUNTED AT THAT
TIME. SECTION 114 ALSO EXEMPTS H-1B ALIENS FROM THE ANNUAL
CAP WHO ARE SUBJECT TO 212(E) AND WHO HAVE BEEN GRANTED A
WAIVER OF THE TWO-YEAR FOREIGN RESIDENCE UNDER INA
'214(SMALL L) (1)(B).
CONGRESS ALSO SOUGHT TO ENSURE THAT AN ALIEN IS ONLY
COUNTED ONCE, EVEN IF HE OR SHE IS THE BENEFICIARY OF
MULTIPLE H-1B PETITIONS. SECTION 103 THEREFORE ALSO EXEMPTS
AN H-1B ALIEN FROM THE ANNUAL CAP IF THAT ALIEN HAS ALREADY
BEEN COUNTED AGAINST THE CAP WITHIN THE LAST SIX YEARS.
(IF THE ALIEN WOULD BE ELIGIBLE FOR THE FULL SIX YEARS OF
AUTHORIZED ADMISSION AT THE TIME THE PETITION IS FILED,
HOWEVER, THE ALIEN WILL BE COUNTED AGAINST THE CAP.)
GREATER AVAILABILITY OF EMPLOYMENT-BASED IMMIGRANT VISAS
4. IN FISCAL YEARS 1999 AND 2000, DUE IN PART TO THE PER-
COUNTRY LIMITS AND INS BACKLOGS, THE ANNUAL LIMIT FOR
EMPLOYMENT-BASED IMMIGRANT VISAS WAS NOT REACHED DESPITE A
LARGE APPARENT DEMAND. THE ACT MAKES THREE CHANGES TO
ATTEMPT TO RECTIFY THE SITUATION WITH REGARD TO PER COUNTRY
LIMITS. FIRST, SECTION 106 RECAPTURES THOSE EMPLOYMENT-
BASED VISA NUMBERS WHICH WERE AVAILABLE BUT NOT USED IN
FISCAL YEARS 1999 AND 2000 AND MAKES THEM AVAILABLE TO E1,
E2, E3, AND EW APPLICANTS BEGINNING IN FY-2001.
5. SECOND, SECTION 104 REMOVES THE PER-COUNTRY LIMIT IN
INSTANCES WHERE THE OVERALL APPLICATIONS FOR EMPLOYMENT-
BASED VISAS ARE LESS THAN THE NUMBERS AVAILABLE WITHOUT
REGARD TO THOSE LIMITS. VO/F/I WILL BE REQUIRED TO COMPARE
THE OVERALL DEMAND TO THE AVAILABLE NUMBERS ON A QUARTERLY
BASIS. IF THE TOTAL NUMBER OF AVAILABLE EMPLOYMENT-BASED
VISAS IS GREATER THAN THE NUMBER OF QUALIFIED APPLICANTS
WHO MAY OTHERWISE BE ISSUED SUCH VISAS (DURING THE SAME
PERIOD), THE PER-COUNTRY LIMITATIONS ON EMPLOYMENT-BASED IV
WILL BE LIFTED FOR THE REMAINDER OF THAT QUARTER.
6. FINALLY, SECTION 104 ALSO PROVIDES THAT AN H-1B ALIEN
WHO HAS APPLIED FOR AND WHO IS OTHERWISE ELIGIBLE FOR
ADJUSTMENT OF STATUS BUT FOR THE PER-COUNTRY LIMITS, MAY
OBTAIN AN EXTENSION OF STATUS WITHOUT REGARD TO THE SIX-
YEAR LIMIT, UNTIL A DETERMINATION IS MADE IN HIS OR HER
ADJUSTMENT CASE.
"PORTABILITY" OF H1-B STATUS
7. SECTION 105 INCREASES THE ABILITY OF AN H-1B APPLICANT
TO CHANGE JOBS WHILE IN THE U.S. IF AN H1-B ALIEN
. HAS BEEN LAWFULLY ADMITTED TO THE U.S.,
. IS THE BENEFICIARY OF A NON-FRIVOLOUS PETITION FOR NEW
EMPLOYMENT FILED BEFORE THE EXPIRATION OF HIS/HER
AUTHORIZED PERIOD OF STAY; AND
. HAS NOT BEEN EMPLOYED IN THE U.S. WITHOUT
AUTHORIZATION SUBSEQUENT TO HIS/HER LAWFUL ADMISSION
BUT BEFORE THE FILING OF SUCH PETITION,
THEN THAT ALIEN IS AUTHORIZED TO ACCEPT NEW H1-B EMPLOYMENT
WITH A NEW EMPLOYER FROM THE TIME THAT EMPLOYER FILES A
PETITION UNTIL THE PETITION IS ADJUDICATED. IF THE NEW
PETITION IS DENIED, SUCH AUTHORIZATION SHALL CEASE.
EXTENDING AUTHORIZED STAY AND EMPLOYMENT FLEXIBILITY IN
CASES OF LENGTHY ADJUDICATIONS
8. ALTHOUGH ALIENS GENERALLY MAY REMAIN IN H-1B STATUS FOR
NO MORE THAN SIX YEARS, SECTION 106 ALLOWS INS TO EXTEND AN
ALIEN'S H-1B STATUS BEYOND SIX YEARS IN CERTAIN
CIRCUMSTANCES. INS MAY EXTEND H-1B STATUS IN ONE-YEAR
INCREMENTS FOR ANY H-1B ALIEN WHO HAS EITHER AN EMPLOYMENT-
BASED IMMIGRATION PETITION OR APPLICATION FOR ADJUSTMENT OF
STATUS PENDING AND MORE THAN 365 DAYS HAVE PASSED SINCE
EITHER THE LABOR CERTIFICATION APPLICATION (IF APPLICABLE)
OR THE PETITION WAS FILED. EXTENSIONS MAY CONTINUE UNTIL
THE ALIEN'S PETITION IS DENIED OR THE ALIEN'S ADJUSTMENT IS
ADJUDICATED.
9. SECTION 106 FURTHER PROVIDES THAT AN ALIEN WHOSE
APPLICATION FOR ADJUSTMENT OF STATUS HAS REMAINED
UNADJUDICATED FOR 180 DAYS OR MORE MAY CHANGE EMPLOYERS
WITHIN THE SAME OR SIMILAR OCCUPATIONAL CLASSIFICATION
WITHOUT HAVING TO OBTAIN APPROVAL OF A NEW PETITION.
EXTENSION OF CERTAIN REQUIREMENTS AND AUTHORITIES
10. SECTION 10 EXTENDS UNTIL OCTOBER 1, 2003 THE
REQUIREMENT THAT H-1B DEPENDENT EMPLOYERS ATTEST THAT THE
HIRING OF AN H-1B ALIEN HAS NOT AND WILL NOT WITHIN THE 90
DAY PERIOD PRIOR TO AND THE 90 DAY PERIOD AFTER THE FILING
OF AN H-1B PETITION RESULT IN THE DISPLACEMENT OF A U.S.
WORKER. IT ALSO EXTENDS UNTIL THE SAME DATE CERTAIN
INVESTIGATIVE AUTHORITY IN H-1B MATTERS GIVEN TO THE
SECRETARY OF LABOR. BOTH OF THESE PROVISIONS WERE ENACTED
IN THE AMERICAN COMPETITIVE WORKFORCE IMPROVEMENT ACT
(ACWIA) OF 1998.
RECOVERY OF VISAS USED FRAUDULENTLY
11. SECTION 108 PROVIDES FOR THE RECOVERY OF AN H-1B NUMBER
WHEN AN APPROVED H-1B PETITION IS DETERMINED BY INS TO HAVE
BEEN OBTAINED THROUGH FRAUD. THE NUMBER WILL BE APPLIED TO
THE NUMERICAL LIMIT FOR THE FISCAL YEAR IN WHICH THE
PETITION IS REVOKED.
ALBRIGHT
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End Cable Text
11/08/2000