AMERICAN COMPETITIVENESS IN THE 21st CENTURY
This act was passed by Congress and signed by President Clinton in October 2000. Following is a list of the major changes the new law establishes:
Fee: The BCIS fee for H-1Bs is increased to $1110 effective December 17, 2000. Prior to this date, but after December 1998, the fee was $610. Before December 1998, the fee was $110.
H-1B Cap: The numerical limit for H-1Bs in the fiscal years of 2000 through 2003 is raised to 195,000. This is an increase from the previous annual limit of 115,000. Prior to October 1998, the annual limit of H-1Bs was 65,000.
The numerical limitation will not apply to any nonimmigrant employed at an institution of higher learning or a nonprofit research organization or a governmental research entity.
An alien will only be counted once, even when there have been multiple H petitions on her/his behalf. The new counting process is an improvement over the previous counting system where each petition was counted against the cap regardless of the fact that several petitions were filed by many different companies on behalf of the same alien. Although the alien would ultimately accept the offer of only one of the employers and thus use only one of the H-1B petitions, the other companies' petitions would still be counted against the cap. If the other companies sent withdrawal requests to BCIS to cancel their H-1B petitions, then BCIS would add the numbers of cancellations back into the pool of available H-1Bs. However, many companies and their attorneys did not make it a practice to withdraw unused H-1B petitions. My practice was and still is to advise my clients to notify me upon the realization that an H-1B will not be joining the company so that I may send in a termination notice for that individual.
Transfer Petitions: If a person is currently in H-1B status, and s/he wishes to change employers, she may begin work for the new employer once the prospective employer files a new H-1B petition. This is a change from the previous requirement that employers obtain petition approval (three-month process) before employing an H-1B worker. If the petition is denied, the authority to work granted under this section ceases, and the alien must leave the country immediately. There is no grace period for leaving the country if the petition is denied.
GREEN CARD CHANGES
Country Backlog: If an alien has received an approval of her/his I-140 petition, but is not yet able to apply for the I-485 Adjustment of Status (available only to aliens physically located in the U.S.) due to per country limitations, he is eligible for an extension of his nonimmigrant visa (i.e. H, L). Under pre-existing law, if a person reached his six-year limit in H-1B status and still was not eligible to apply for the I-485 due to the per country limitations, he would have to leave the country. Once outside the country, he would have to wait until a number became available for him before he could return to the U.S. However, since he was no longer in the U.S., he would have to apply for consular processing rather than the I-485 Adjustment of Status. Consular processing of permanent resident petitions in some countries can take several months.
H-1B Six-Year Limit: A person may extend her H-1B status in one-year increments beyond the six-year limitation if 365 days or more have passed since the filing of (a) a labor certification or (b) an I-140 immigrant petition. Previously, if an H-1B had not yet obtained a different status (either permanent resident status or an alternative nonimmigrant status) by the time she reached her six-year limit, she would have to leave the U.S. and remain outside the U.S. for one year. After that one year, she could then return to the U.S. for six years of H-1B status.
Changing Employers: A person who has filed an adjustment of status petition may change employers or jobs if the new job is in the same or similar occupational classification as the one listed on the original labor certification if more than 180 days have passed, and BCIS adjudication has not occurred. Under previous law, a person did not have to be working for the petitioning employer while the permanent resident petition was pending. Once the petition was approved, however, the person had to return to the employment of the petitioner. Nonetheless, this type of arrangement was not practical because a petitioning employer would not be favorable to accepting back an employee that chose to leave while a petition, a petition for which the employer had paid thousands, was pending. If the person did not return to the petitioning employer, the employee's green card would be the subject to fraud charges. Even if BCIS did not discover the problem immediately, the person would face problems of fraud allegations and deportation when she made an application to become a citizen. With the new law, a person does not need to return to the petitioning employer if adjudication by the BCIS is taking longer than 180 days.
Note: The law does not specifically allow a change geographical locations. We are still awaiting clarification on this point from INS.