- President Signs H-1B Bills
- Congress Makes Visa Waiver Program
Permanent, Extends EB-5 Pilot Program
- Philippines Employment-Based Third
Preference May Backlog in December
- AILF and INS Reach Settlement in
Healthcare Worker Litigation
- The Firm Speaks
1. President Signs H-1B Bills
On October 17, 2000 President Clinton signed
a bill increasing the number of H-1B visas. The new law increases
the number of H-1B visas available for U.S. companies to hire highly
skilled foreign professionals, by raising the cap from 115,000 to
195,000 per year for the next three years and making modest changes
to the green card process that enables employers to keep top talent
in the United States. It also directs additional funds to education
and training programs to prepare more U.S. workers for high tech
careers.
The same day the President also signed a
separate bill increasing the surcharge on H-1B petitions from $500
to $1000. In his statement (see link below) the President stressed
that the increase in the cap is temporary, and that over the long
term the U.S. ought to train more scientists and engineers. He also
noted several aspects of S. 2045 that remain a concern, including
the provision that extends an H-1B visa beyond six years while the
visaholder is applying for permanent residency. The statement can be
found at: http://www.whitehouse.gov/library/hot_releases/October_17_2000_6.html
The Administration's fact sheet on the new
law and the President's comments appears at:
http://www.whitehouse.gov/library/hot_releases/October_17_2000_7.html
The American Immigration Lawyers Association (AILA) has prepared the
following Q and A about the new law, which is called the American
Competitiveness in the Twenty-first Century Act of 2000 (AC21):
1. How many new H-1B visas are available?
Will there be enough?
Answer: The new law increases the H-1B visa
quota to 195,000 for each of fiscal years 2001, 2002, and 2003. (It
then drops back down to 65,000 in fiscal 2004.) Other provisions of
the legislation should result in a noticeable number of H-1Bs not
being counted toward the cap that had been counted in past years,
resulting in an even greater effective increase in numbers. Those
provisions include:
* Exceptions from the quota for H-1Bs hired
by institutions of higher learning, affiliated research
organizations, nonprofit research organizations and governmental
research organizations. This exception is estimated to account for
between 6,000 and 10,000 H-1B visas per year.
* Exceptions from the quota for H-1Bs
granted to physicians who have obtained a Conrad state 20 waiver of
the J-1 two-year home residence requirement.
* Because the legislation increases the
quotas for fiscal 1999 and 2000 to whatever was the number needed to
meet those years' demands, and treats petitions (filed up to
September 1, 2000) as applicable to fiscal 2000, fiscal 2001
effectively "starts fresh" without any carry-over of
petitions left over from last fiscal year. This provision will
prevent more than 30,000 H-1B numbers from last year being charged
to the current fiscal year's quota.
* AC21 corrects INS' past errors in its
approach to counting H-1Bs, instructing that those who have received
an H-1B in the past 6 years (and who are not eligible to begin
another 6 years of H-1B status), and those for whom multiple
petitions have been filed, be counted only once. It has been
estimated that these counting errors have in the past accounted for
at least 3,000 and possibly as many as 12,000 H-1B numbers in a
given year. The combined result of the increase in numbers, the
exceptions from the quota, the "fresh start" and the
correction of past INS counting errors is hoped to be a sufficient
supply of H-1B numbers, at least for the next year or two, but no
one can be sure.
2. Is someone who obtained H-1B status three
years ago, but has not been maintaining status for the past year,
still subject to the quota?
Answer: If the individual was in the U.S.
during all or part of that year, s/he is not subject to the quota,
since AC21 section 103 amends INA section 214(g)(7) to make clear
that anyone who already has been counted in the past six years would
not be counted again unless eligible for another full six years.
However, if the individual had spent that one year outside the U.S.,
under INS regulations s/he is eligible for another 6 years of H-1B
status, and thus would be counted.
3. What is the expected immediate effect of
AC21 section 104's provisional lifting of the per-country limits on
employment-based India and China backlogs?
Answer: According to Charles Oppenheim (the
individual at the Department of State responsible for preference
cut-off dates), significant movements forward in cut-off dates are
not likely to happen until December 2000 (but a cut-off date for the
Philippines third preference is likely to be established at that
time; see news article no. 3 below). He is uncertain whether and
when there will cease to be any per-country backlogs, due to a lack
of information from INS as to the number of cases caught in
processing backlogs and as to expected processing times, but Mr.
Oppenheim believes per-country cut-off dates will continue at least
for the first two quarters of fiscal year 2001.
4. Under what circumstances can someone who
is running out of his/her six years in H-1B status extend that
status?
Answer: AC21 provides for such extensions in
two circumstances:
* Under AC21 section 104(c), 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 the H-1B status until
the adjustment of status is decided.
* Under AC21 section 106(a), an H-1B status
can be renewed in one-year increments for beneficiaries of any
employment-based petition until adjustment processing is completed
as long as 365 days or more have elapsed since the labor
certification application or immigrant petition was filed.
5. Lately, consular processing at most posts
has been faster than adjustment of status at most service centers.
Does this legislation make adjustment more desirable than consular
processing?
Answer: AC21 gives some advantages to people
in adjustment of status over people in consular processing, but at
least one of the law's benefits may be useable in either context:
* The section 104(c) extension beyond the
sixth year for individuals with employment-based immigrant petitions
filed but priority dates not current appears to be available only in
the context of an adjustment of status.
* The section 106(a) provision for extending
H-1Bs beyond the sixth year when permanent residence processing has
taken too long can be read to apply whether the individual pursues
adjustment or consular processing, since one can become eligible for
its benefits if the petition has been filed. But there is no
assurance that INS and the State Department will read this provision
to apply to consular processing cases.
* Another advantage to the beneficiary of
adjustment over consular processing is that the AC21 section 106(c)
permanent residence portability provision specifies the filing of an
adjustment of status application as a prerequisite for eligibility,
and thus appears not to apply to persons in consular processing.
Under this provision, someone whose adjustment application has been
unadjudicated for 180 days or more can change jobs and/or employers
if the new job is in the same or a similar occupational
classification as the one for which the petition was filed. (Note
that this portability provision does not apply to beneficiaries of
EB-1 extraordinary ability petitions, most likely because Congress
assumed that such petitions already are portable.)
6. How does one become eligible for the AC21
section 105 H-1B portability provisions?
Answer: This section allows a beneficiary of
a petition to change employers to begin the new employment upon
filing of the petition, rather than waiting for the petition to be
approved. The petition must be nonfrivolous, and the beneficiary
must be a nonimmigrant admitted to the U.S. (no particular
nonimmigrant category is specified, but the individual must have
been previously issued an H-1B visa or otherwise provided H-1B
status), must not have been employed without authorization before
the petition was filed, and must be in an unexpired period of stay
when the petition is filed.
7. Can someone with a change of employer
H-1B petition pending since before AC21's passage change employers
now under AC21 section 105, before the petition is approved?
Answer: Yes. The AC21 section 105 H-1B
portability provision applies to petitions filed "before, on,
or after" the date of enactment.
8. Must an employer under the AC21 section
105 portability provisions pay the higher of the prevailing or the
actual wage under the labor condition application?
Answer: It would appear so. The employment
with the new employer cannot begin until the petition is filed. The
petition cannot be filed if the labor condition application has not
been filed. The INA section 212(n)(1)(A) wage attestation of the LCA
requires that the employer "is offering and will offer during
the period of authorized employment" the required wage. Since
AC21 section 105 makes the I-129 pending period a "period of
authorized employment," those LCA attestations would appear to
apply during the period before the petition is approved.
9. How would an employer under the section
105 portability provisions fulfill the I-9 verification requirement?
Answer: The situation here is analogous to
the 240-day grace period of 8 C.F.R. section 274A.12(b)(20), which
authorizes employment with the same employer for up to 240 days
after an extension petition is filed. In both circumstances, the
employment is authorized but there is no provision on the I-9 form
for the documentation of this fact. Thus, employers may want to
follow whatever documentation procedures they use for the 240-day
grace period.
10. Will the ACWIA attestations for
dependent employers apply?
Answer: Yes, as soon as the Department of
Labor issues the regulations that will trigger the application of
those provisions. AC21 extends the dependent attestation provisions
until October 1, 2003, thus providing the DOL some time to avoid
having the provisions sunset before they ever take effect. The
provisions were originally slated to sunset on October 1, 2001.
11. What processing times for petitions and
applications did Congress set forth for INS?
Answer: Title II of AC21 provides a
"sense of the Congress" that INS should eliminate its
current backlog and reduce processing times for Hs, Ls, Os and Ps to
30 days, and all other petitions and applications (including
family-based) to 180 days. To fund this endeavor, AC21 authorizes
appropriations necessary for INS to carry out the steps needed, thus
at last authorizing expenditure of funds for adjudications other
than from the user fee account. It also designates an account in the
Treasury Department for INS infrastructure improvements. Although
the legislation authorizes these expenditures, an actual
appropriation measure will be needed for INS to obtain the funds,
and there is no guarantee that Congress will pass such a measure.
12. Is any provision made for continuity of
H-1B validity in corporate restructuring situations?
Answer: Yes. A separate measure, the Visa
Waiver Permanent Program Act, included a provision that an amended
H-1B petition is not required where a new corporate entity succeeds
to the interests and obligations of the original employer, and where
the terms and conditions of employment remain the same. President
Clinton is expected to sign that bill into law soon.
13. Has the H-1B "training fee"
changed?
Answer: Yes, in a separate piece of
legislation (H.R. 5362), the amount of the fee has been increased to
$1,000 and the exemptions from the fee have been expanded to include
primary and secondary schools and nonprofits engaged in
curriculum-related clinical training of students registered at an
institution of higher education. The fee increase is effective two
months after enactment, but the new exemptions take effect
immediately.
14. When do all these new provisions take
effect?
Answer: Most are effective as of October 17,
2000, the date AC21 and the fee increase bill were signed. The only
provision with a delayed effective date is the fee increase, which
takes effect December 17, 2000. Note, however, that the INS needs to
revise its I-129W form to reflect the new fee and new exemptions
from the training fee. It is unclear whether the INS will be able to
do that by December 17.
As of this writing, the Visa Waiver
Permanent Program Act, which includes the corporate restructuring
provisions, has not yet been signed. That provision will take effect
immediately upon signing.
Two provisions have, to some extent,
retroactive effect. The extra H-1B numbers to clear out the fiscal
1999 and 2000 overages are effective "as if included in"
1998 legislation. AC21 section 105, allowing beneficiaries of change
of employer petitions to begin the new job immediately upon filing
of the petition, applies to petitions filed before, on, or after the
date of enactment.
Stephen Yale-Loehr has co-authored an
article explaining the H-1B legislation that should appear in the
New York Law Journal next week. After it is published there, we will
repost it on our web site.
2. Congress Makes Visa Waiver Program
Permanent, Extends EB-5 Pilot Program
Congress has passed legislation (H.R. 3767)
that makes the visa waiver program permanent. The program allows
nationals of nearly 30 countries to enter the United States without
a visa on business or for pleasure for up to 90 days. This is a real
boon to many business people and vacationers.
The visa waiver program had been operating
on a pilot basis for several years. This legislation makes the
program permanent.
Also included in H.R. 3767 are various
miscellaneous immigration provisions, such as the H-1B changes for
nonimmigrants affected by corporate restructurings. That provision
is summarized in the news item above.
Also included in H.R. 3767 is a three-year
extension of the EB-5 immigrant investor pilot program. This program
makes it easier for certain immigrant investors to obtain green
cards by investing in designated regional centers. The pilot program
expired September 30; this extension extends the pilot program until
2003. Stephen Yale-Loehr of our law firm, who heads AILA’s
Investors Committee, worked with others behind the scenes to get
this extension enacted.
For an overview article on EB-5 immigrant
investors, see: http://www.millermayer.com/resources/immigrant/immigrant14cont.htm
President Clinton is expected to sign H.R.
3767 into law shortly.
3. Philippines Employment-Based Third
Preference May Backlog in December
According to Charles Oppenheim of the State
Department, a cut-off date for the Philippines employment-based
third preference immigrant visa category may be established in
December, notwithstanding the impact of the recently-enacted
suspension of per-country limits where employment-based visa numbers
are available. Mr. Oppenheim expects that the per-country
employment-based visa numbers will be slow to feel the full impact
of that provision, due mostly to the unpredictability of demand from
the INS. See news item no. 1 above. He expects very little movement
for India and China employment preferences in November, but perhaps
some significant movement forward in December.
4. AILF and INS Reach Settlement in
Healthcare Worker Litigation
On September 29, 2000, the American
Immigration Law Foundation (AILF) entered into an agreement with the
INS to settle Abraham v. Reno, the lawsuit filed to compel INS to
issue regulations implementing section 343 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
for certain healthcare workers. The lawsuit will be dismissed only
after the INS timely issues the regulations, in order to ensure that
the agency will comply with its obligations under the settlement
agreement. AILF will carefully monitor the INS' compliance with the
terms of the agreement and will be ready to go back to court if the
agency fails to meet any of its obligations.
A summary of the agreement is posted on
AILF's Legal Action Center Website http://www.ailf.org/lac/
5. The Firm Speaks
October 24: Steve Yale-Loehr will give a
presentation on Visas After Graduation at Cornell University’s
Kennedy Hall from 7-9 p.m.
November 13: Hilary Fraser and Rosanne Mayer
will lead a panel on temporary work visas at the NAFSA regional
meeting in Montreal Canada.
November 23: Steve Yale-Loehr will speak on
comparative business immigration issues at an international
symposium on immigration, labor and the law in Sydney Australia.
(See http://www.law.usyd.edu.au/nationskilling/)
December 13: Steve Yale-Loehr will speak on
unlawful presence issues at a conference sponsored by the American
Immigration Lawyers Association in New York City.
For more information about any of these
talks, contact us at the email addresses listed at the end of this
newsletter.
_________
That’s it for this issue. Much of the
information in this issue comes from the American Immigration Lawyers
The contents of these web pages are provided for general informational purposes and
do not constitute legal advice for specific cases, which should only be obtained from an
attorney. |
Copyright © 2002 True, Walsh & Miller, LLP. Attorneys at Law
The Commons, 202 East State Street, Ithaca, New York 14850
phone: 607-273-4200, fax: 607-272-6694, E-mail: twm@twmlaw.com |