May 7, 2003
On October 17, 2000, the President signed into law immigration bills (S. 2045 and H.R. 5362) that provide additional opportunities for H-1B petitioners and beneficiaries. The legislation, which became effective when the President signed, also directs the INS to eliminate backlogs and delays in deciding immigration benefits. According to Congress, no immigration benefit application should take more than six months to decide, and no petition for a nonimmigrant visa should take more than one month.
H-1B fees increased:
- Portion of filing fees paid by the employer for the education and training fund will increase from $500 to $1,000 for all H1-B petitions filed on or after December 17, 2000.
- Exemptions from this education and training fund portion of the filing fees were extended to primary and secondary schools, and nonprofits engaged in curriculum-related clinical training of students registered at an institution of higher education. As before, institutions of higher education, nonprofits related to institutions of higher education, and nonprofit or governmental research organizations remain exempt.
H-1B cap increased and backlog cleared out:
- Beginning on October 1, 2000, the number of first-time H-1B approved petitions has been increased to 195,000 (from 115,000) for the next three years.
- H-1B petitions approved in 1999 after the cap was reached and before October 1, 1999 are counted against the FY 1999 cap, and all cases filed before September 1, 2000 are to be counted against the FY 2000 cap, regardless of when approved. The H-1B allotments for those two years will be raised to accommodate the additional approvals. This means that the entire allotment of 195,000 approvals will be available for FY 2001.
- All H-1B petitions revoked for fraud or willful misrepresentation will be added back into the pool of available numbers.
- As before, multiple and consecutive H-1B petitions for the same individual are only counted once.
Exemptions from the H-1B quota:
- Individuals hired by institutions of higher learning (or an affiliated nonprofit entity), nonprofit research organizations, and governmental research organizations.
- Physicians who have obtained a Conrad 20 waiver of the J-1 two-year home residence requirement.
- Individuals who have already been counted within six years with subsequent H-1B petitions filed for the remainder of the H-1B six-year time limit.
Two ways to extend the 6 year limit in H-1B status:
- A beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residence but for the application of the per country limits may obtain extension of H-1B or other nonimmigrant status until the application for adjustment of status is decided.
- If 365 days or more have passed since the labor certification application or immigrant petition was filed, H-1B status may be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed.
Changing jobs on an H-1B:
- As soon as a new H-1B is filed by a new employer, the beneficiary can begin working immediately for the petitioning employer as long as:
- The individual was lawfully admitted into the United States and was previously issued an H-1B visa or had H-1B status;
- An employer filed a nonfrivolous H-1B petition for new employment while the ien was in lawful status; and
- The individual was not employed without authorization in the United States before the filing of such petition.
- This provision applies to all petitions filed before, on, or after October 17, 2000.
Permanent Residence Issues:
- Any unused employment-based immigrant visas that exist at the end of a calendar quarter may be allocated in subsequent quarters to countries with a visa backlog (such as China and India.)
- An individual who filed for adjustment of status (Form 1-485) may change employers or accept a new job as long as the new job is in the same or similar occupational classification as the job for which the certification was issued and the adjustment of status application has been pending for 180 days or more. Please note that until the regulations are drafted we do not know whether INS will count these 180 days from date of enactment, which would mean that no one is eligible for this until at least mid April, 2001.
- Any employment-based immigrant visas that were available but unused in FY 1999 and FY 2000 are to be "banked" for use in future fiscal years.
Amended H-1B Not Required After Corporation Restructuring:
- The Visa Waiver Permanent Program Act provides that no new H-1B is required where the employer is involved in a merger, acquisition, consolidation, or other corporate restructuring if:
- The new corporate entity succeeds to the interests of the H-1B employer; and
- Besides the employer's identity, the terms and conditions of employment remain the same.
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