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INS Questions and Answers
November 21, 2000
Changes to the H-1B Program
On October 17 and 30, 2000, President Clinton
signed into law several bills which significantly change the
H1B program as well as the employment based immigration program.
Prominent among these bills is the American Competitiveness
in the Twenty-First Century Act (AC21).
Q1: How does
AC21 affect the H-1B cap?
A1: Section 214(g) of
the Immigration and Nationality Act (Act) sets an annual limit
on the number of aliens that can receive H1B 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. Back
to top.
Q2: Are there
new exemptions to the H1B cap?
A2: Yes. In addition
to increasing the cap, AC21 exempts H1B 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 H1B worker be counted
against the cap if the worker transfers from an "exempt"
employer to an employer that does not have an exemption. In
addition, the FY 2001 cap does not include H1B petitions filed
after INS reached the FY 2000 cap on March 22, 2000, but before
September 1, 2000. INS estimates that approximately 30,000 petitions
were filed during that time frame. Back
to top.
Q3: How does
INS plan to adjust its current counting method so that any petitions
filed prior to September 1, 2000 will not count against the
FY 2001 cap?
A3: The Service already
electronically captures the date a petition was received by
INS. Therefore, our ability to electronically separate cases
file before 09/01/00 is already in place. Back
to top.
Q4: What steps
has INS taken to improve its counting to ensure that multiple
beneficiaries are only counted once as required by the new law?
A4: The Service has
conducted sweeps of the H1B data to identify multiple beneficiaries
to ensure that they are counted toward the cap only once in
past fiscal years. We will continue with that process insuring
that we conduct the sweep on using H1B data for the past six
years. Back to top.
Q5: The bill
requires that INS may not count someone toward the cap if they
have had H1B status in the prior 6 years, unless the individual
would be authorized for a new 6-year period of stay. How is
INS going to implement this? How does this differ from INS’
current counting methodology?
A5: INS is revising
its regulations to explain when an H1B worker is eligible for
a new 6-year period of stay. System changes will be made in
order to allow the Adjudicator to indicate whether an individual
who was previously H1B is now eligible for a new 6-year period
of stay. This indicator will enable the Service to properly
count an individual toward the cap in these circumstances. Upon
approval of the petition, the program will compute the number
of H1B visas issued according to the factors as defined by statute.
Back to top.
Q6: The legislation
states that the limit for FY 99 is increased by "a number
equal to the number of aliens issued such a visa or provided
such as status" from the time the limit was reached and
September 30, 1999. Is INS interpreting this clause to deal
solely with the discovered overage or does INS intend to recapture
any visas it issued before September 30, 1999 but had given
FY 2000 start dates?
A6: The Service interprets
this language as forgiveness for the number of H1B petitions
approved in excess of the FY99 cap due to counting errors. It
is not our intent to recapture numbers for cases approved in
FY00 toward the FY00 cap. Back
to top.
Q7: When does
the law take effect?
A7: 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 H1B
petitioner fee from $500 to $1000, which takes effect on December
17, 60 days after enactment. Back
to top.
Q8: Are there
new exemptions from the ACWIA (now $1,000) fee?
A8: Yes. 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 H1B nonimmigrant;
- Primary or secondary education institutions;
or
- Nonprofit 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.
Q9: Are there
any new filing exemptions?
A9: Yes. An amended
H1B 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. Back
to top.
Q10: Who is
eligible to use the H1B "portability" provisions?
A10: The portability
provisions allow a nonimmigrant alien previously issued an H1B
visa or otherwise accorded H1B status to begin working for a
new H1B employer as soon as the new employer files an H1B petition
for the alien. Previously, aliens in this situation had to await
INS approval before commencing the new H1B employment. These
provisions apply to H1B petitions filed "before, on, or
after" the date of enactment, so all aliens who meet this
definition can begin using the portability provisions. Back
to top.
Q11: Are there
any other limitations on the portability provisions?
A11: 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. Back
to top.
Q12: How will
employers who hire H1B aliens using the portability provisions
comply with their I-9 requirements?
A12: Current regulations
at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing
employer after a request for extension of H1B status is filed.
The alien in this case is employment authorized but the I-9
form contains no provision for this authorization. Employers
should follow the documentation procedures they currently use
for an extension of this sort. Typically, this could involve
attaching a copy of the receipt notice for the filed petition
along with a copy of the alien’s I-94 to the I-9 kept on file.
Back to top.
Q13: When will
the Implementing regulation be published?
A13: INS is currently
drafting the regulation. Because of the new $1,000 fee increase,
it is possible that in addition to the normal DOJ and OMB review,
this regulation will have to undergo the additional review required
by the Small Business Regulatory Enforcement Fairness Act of
1996. If this is the case it is unlikely that the regulation
will be published before March 2001. INS is exploring ways to
expedite publication of the regulation.
Q14: What benefits
are available under AC21 to aliens with Immigrant petitions/adjustment
applications?
A14: First, § 104 of
AC21 lifts the per-country limits on employment-based immigrant
visa numbers if the total number of visas available during a
calendar quarter exceeds the number used. The Department of
State is charged with issuance of these visas and maintenance
of priority dates and availability. This issue will not be addressed
in INS regulations. Back
to top.
Where the country caps delay an alien’s immigration
notwithstanding this provision, AC21 also provides for an extension
of H1B status until the alien's adjustment of status application
can be processed and a decision made.
Finally, AC21 gives extensions of H1B status
in one-year increments to H1B aliens who have an employment-based
immigrant visa petition or application for adjustment of status
pending if It has been more than 365 days since the visa petition
or the labor certification application has been filed. Note
that the adjustment application, labor certification, or visa
petition need not necessarily have been pending for a year to
obtain this benefit. The only requirement is that 365 days have
passed since filing of the labor certification or immigrant
visa petition. Back to
top.
Q15: Will H-4
dependents of H1B nonimmigrants be able to receive these extensions?
A15: The AC21 does not
address this issue but speaks only of aliens issued a visa or
otherwise provided nonimmigrant status under the H1B provisions
of the Act. INS is studying this issue, which will be addressed
in the implementing regulations currently under development.
Back to top.
Q16: How will
employers demonstrate I-9 compliance for H1B aliens granted
extensions beyond the six-year period in INA 214(g)(4)?
A16: Current regulations
at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing
employer after a request for extension of H1B status is filed.
The alien in this case is employment authorized but the I-9
form contains no provision for this authorization. Employers
should follow the documentation procedures they currently use
for an extension of this sort. Typically, this involves attaching
a copy of the receipt notice for the extension along with a
copy of the alien’s I-94 to the I-9 kept on file. Back
to top.
Q17: The law
requires that any visas revoked due to fraud are recaptured
and restored to the total available for the current fiscal year.
How does INS intend to do this?
A17: INS already has
the ability to electronically identify those cases that are
revoked due to fraud as opposed to those that are revoked for
other reasons. Therefore, this should not be an issue. Back
to top.
Q18: The law
mandates INS processing times of 180 days. Given the current
budget situation does INS feel that it can realistically meet
this goal?
A18: The new law does
not mandate any processing times. It does, however, indicate
that it is the sense of Congress that adjustment applications
should be completed in no more than 180 days and nonimmigrant
petitions should be processed in no more than 30 days. This
sense of Congress is followed by recognition that INS is in
need of appropriations for infrastructure and other improvements.
INS will in the process of collecting data in an attempt to
comply with the reporting requirements necessary to be eligible
for consideration of appropriations that may be granted to aide
in the reduction of processing times. There is no guarantee
that Congress will appropriate funds for the improvements necessary
to reduce backlogs and improve processing time within the Service
even if INS complies with all of the reporting requirements
set forth in the statute. Back
to top.
Q19: Given the
large increase in the volume of applications, does INS feel
that it can maintain its current processing goals of 60 days
for H1B petitions and 90 days for I-140 petitions given that
Congress has only earmarked 4 percent of the new H1B fee for
INS processing?
A19: The Service will
do its best to maintain current processing times. Much of our
ability to maintain the processing times will be a result of
the budget that is passed and our ability to direct overtime
funds to the offices that will be impacted by the increased
filings. Although we have been authorized to hire individuals
into term positions to deal with the increased filings, the
hiring and training process are lengthy and the true benefits
of the hiring will not be realized for several months. Back
to top.
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