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Changes to the H-1B Program
*Extracted from INS questions
and answers November 21,2000
On
October 17 and 30, 2000, President Clinton signed into law
several bills, which significantly change the H-1B
program as well as the employment based immigration program.
Prominent among these bills is the American Competitiveness
in the Twenty-First Century Act (AC21).
AC21
Effects on the H-1B
Cap:
Section
214(g) of the Immigration and Nationality Act sets an annual
limit on the number of aliens that can receive H-1B
status in a fiscal year. For FY2000 the limit was set at
115,000. AC21 increases the annual limit to 195,000 for
2001, 2002 and 2003. After that date the cap reverts back
to 65,000.
New
Exemptions to the H-1B
cap:
- In
addition to increasing the cap, AC21 exempts H-1B
workers who are employed by or have an offer of employment
from:
- Institutions
of higher education;
- Related
or affiliated nonprofit entity, or
- Nonprofit
or government research organization.
- AC21
also specifies that an H-1B
worker be counted against the cap if the worker transfers
from an exempt employer that does not have an exemption.
When
the law takes effect:
- Almost
all of the provisions of AC21 and the related legislation
are effective immediately upon enactment. The law was
officially enacted on October 18, 2000. The sole exception
is the increase in H-1B
petitioner fee from $500 to $1000, which takes effect
on December 17, 60 days after enactment.
New
exemptions from the ACWIA (now $1,000) fee:
Employers
now exempt from paying the fee include:
- Institutions
of higher education and related or affiliated non-profit
organizations;
- Non-profit
or governmental research organizations;
- Any
employer who is filing for a second extension of stay
for an H-1B
non immigrant;
- Primary
or secondary education institutions; or
- Non-profit
entity engaged in established curriculum-related clinical
training of students.
Although
the fee increase does not take effect for 60 days, the new
exemptions from the fee are effective immediately. Thus the
new exempt organizations are exempt as of October 18, 2000.
INS is working to change its forms and systems to accommodate
this change but this will take time. In the meantime, petitioners
claiming to be exempt should submit a copy of the relevant
provision of AC21 with their petition along with evidence
that they qualify as an exempt organization. Petitioners
should also note on Form I-129W the basis for the exemption,
notwithstanding the fact that the form will not initially
contain the necessary boxes to check for these new exemptions.
New
filing exemptions:
- An
amended H-1B
petition is no longer required when the petitioning employer
undergoes a corporate restructuring, including but not
limited to a merger, acquisition or consolidation, where
the new corporate entity succeeds to the interest and
obligations of the original petitioning employer and where
the terms and conditions of employment remain the same
but for the identity of the petitioner.
Other
limitations on the portability provisions:
- An
alien must have been lawfully admitted into the United
States. The new employer must have filed a non-frivolous
petition while the alien was in a period of stay authorized
by the Attorney General. A non-frivolous petition is
one that has some basis in law or fact. INS plans to
further define this in its implementing regulations.
Subsequent to such lawful admission, the alien must not
have been employed without authorization.
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