On October 3, 2000, the U.S. Congress passed legislation to
increase the number of H-1B nonimmigrant work visas available for the
next three years. The legislation (S. 2045) also makes it easier to
use H-1B visas in several ways. President Clinton is expected to sign
the bill into law soon.
An H-1B fee increase was not included in the bill. During the
debate, lawmakers indicated that an increase is expected to be
included in a separate bill and passed before Congress adjourns. The
increase is expected to raise the fee to $1000.
The text of the bill can be found at: http://thomas.loc.gov/.
Type in S.2045 as your search. A summary of the H-1B visa provisions
follows. For more information on H-1B visas generally, see the
collection of articles on our web site: click here.
* H-1B Cap: Increases cap to 195,000 for fiscal years (FY) 2001,
2002, and 2003.
* Backlog Clearout: The bill 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: Exempts individuals employed at higher
educational institutions and their related or affiliated nonprofit
entities, and individuals employed by nonprofit research organizations
or governmental research organizations from being counted toward the
H-1B cap. Also, H-1B physicians who have received a J-1 Conrad state
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: Prohibits the INS from counting someone toward the
H-1B cap if they have 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.
* Per Country Limits: Allows unused employment-based immigrant
visas in a calendar quarter to be allocated in subsequent quarters
without regard to per-country limits. Allows an individual who has an
I-140 filed on his or her behalf and who would be subject to
per-country limits to extend his or her nonimmigrant status until the
adjustment of status application is decided.
* Portability of H-1B Status: H-1B nonimmigrants may change jobs
upon filing 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 or her last lawful
admission.
* Portability of I-140s and Labor Certifications: Allows
individuals who have filed for adjustment of status and whose cases
have been pending for 180 days or more 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" as the job in the original
petition and labor cert.
* Recapture of Unused Employment-based Immigrant Visas: Provides
that 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.
* Sixth-Year Extension for H-1Bs Awaiting Green Cards: Provides
that H-1B nonimmigrants for whom an I-140 immigrant visa petition has
been filed and whose labor certification or I-140 was filed at least
365 days before, 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.
* Extension of Attestations and Department of Labor (DOL)
Investigative Authorities Through 2003: Extends the additional
attestations and DOL investigative authorities from the American
Competitiveness and Workforce Improvement Act (ACWIA) through FY2003
* Recovery of Fraudulent Visas: Provides that for any H-1B petition
revoked for fraud or willful misrepresentation, the visa number shall
be added back to the cap in the year the petition is revoked,
regardless of when the visa was actually issued.
* Additional Funds to INS for Processing: Increases INS' portion of
the H-1B education and training fee to 4% from the current 1.5%
* Studies and Reports: Requires a new National Science Foundation
study on the divergence of access to high technology ("digital
divide"). The Department of Commerce is to conduct a review of
existing public and private high-tech workforce training programs in
the United States.
* Backlog Reduction Provisions: The bill incorporates the text of
the Immigration Services and Infrastructure Improvement Act (S. 2586,
introduced by Senator Feinstein), which provides for the creation of a
new Immigration Services and Infrastructure Improvement Account to
reduce INS processing time of all cases to less than 180 days and
eliminate the backlog of pending cases. The bill requires INS to
provide a backlog elimination plan to Congress within 90 days of the
enactment of the bill, and annual reports on their service provision
situation and progress toward improvement.