New Immigration Law Helps American Businesses

On October 17, 2000, President Clinton signed into law the "American Competitiveness in the 21st Century Act." The new law contains a number of provisions that will help U.S. businesses that employ foreign professional workers. Here is a quick summary:

• H-1B Cap. H-1B visas (commonly used to employ foreign workers in jobs that require a college degree in a specialty field) are subject to an annual quota. The new law increases the quota from 115,000 to 195,000 for FY 2001 - 2003. The new law also includes a "backlog clear-out" provision that increases the cap for this past year to cover petitions that were filed prior to September 1, 2000 but were cut off by last year's cap of 115,000. New exemptions from the H-1B cap have been added for persons employed at higher educational institutions, nonprofit research organizations, and governmental research organizations, as well as for J-1 physicians who have received a waiver of the 2-year home residency requirement (the prior law only exempted H-1B visa holders who were applying for a change in employers).
• H-1B Portability. For a person who already has an H-1B visa and is simply changing employers, the new law permits the person to change employers immediately upon filing the new petition. In the past, the person could not start working for the new employer until the new H-1B petition had been approved by the INS, a process that often took 45-60 days.
• Extension of H-1B Status Pending Green Card Processing. Individuals who have an I-140 immigrant visa petition pending, and whose I-140 (or labor certification application) has been pending for 1 year or longer, can now extend their H-1B status beyond the 6-year limit, in 1-year increments, until their permanent residence (green card) application is decided. This will be of particular benefit to individuals born in India and China, who are subject to a backlog in green card processing.
• Increase in H-1B Filing Fee. The $500 H-1B education and training fee has been increased to $1,000 effective December 17, 2000 (this was in a separate bill passed at about the same time as the new H-1B legislation). The total INS filing fees for H-1B petitions filed after that date will be $1,110 Rather than $610. The new law broadens the exemption from the $1,000 fee to include not only nonprofit research and government organizations but also elementary and secondary schools and nonprofit entities engaged in curriculum-related clinical training of students enrolled at higher educational institutions.
• Portability of Labor Certifications and I-140 Petitions. Individuals who have applied for adjustment of status to permanent resident (green card), and whose applications have been pending for 6 months or longer, can now change employers without affecting the validity of the underlying labor certification and I-140 immigrant visa petition, so long as the new job is in the same or similar occupational classification.
• Backlog Reduction Provisions. The new law contains funding provisions aimed at reducing INS processing times to less than 180days and to eliminate backlogs on pending cases.

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