The House shocked us all by passing
S.2045 on Tuesday, October 4. The bill raises the H-1B cap, provides special provisions
for students, changes per-country quota rules, gives extensions for those with pending
adjustments who have reached the six year limit, and more. Here are the details:
After a short debate, the House took a
voice vote yesterday, in favor of the bill. The Senate passed the bill by a margin of
96 to 1, leaving Lamar Smith and the other H-1B opponents in the lurch, and the President
is expected to sign this week.
The new H-1B bill can be summarized as follows:
Section:
# 1. Verifies that the Act is entitled the “American Competitiveness
in the Twenty-First Century Act of 2000.”
# 2. Increases the existing visa quotas as follows:
FY 2000 – increase from 115,000 to 195,000
FY 2001 – increase from 107,500 to 195,000
FY 2002 – increase from 65,000 to 195,000
# 3. Establishes new rules involving universities, recent advanced degree
graduates and research institutions:
For starters, the H-1B cap will no longer impact any foreigner who is employed--or has a
written offer of employment--by a university, college or related nonprofit
organization. Neither will nonprofit or government research organizations be subject to
the quota. Once a person under these categories leaves the related position, however, they
do become subject to the H-1B cap once again, unless the subsequent employer is likewise
exempt.
Secondly, for those with a petition filed no more than 90 days prior and no more than 180
days following the completion of a graduate degree, the cap will not be applicable.
# 4. Revises the rules on per-country quotas for those adjusting status
based on employment:
The goal here is that no immigrant visas shall go unused if there are pending applications
which would be accepted, if not for the per-country cap.
If the aggregate number of visas (green cards) available in the five employment-based
green card categories exceeds the number of submitted applications, then the percentile
limitations (stipulating that no given country may represent more than 7% of the applicant
pool for employment-based green cards), shall be suspended.
An additional provision states that any H-1B visa holder who has a pending
employment-based immigrant visa petition and would otherwise be subject to the per-country
limit, may apply for an extension of their current H-1B
status, to keep them in status until the green card is approved or denied.
# 5. Makes it easier to begin working sooner, and to transfer an H-1B
visa without work interruption:
Effective the moment President Clinton signs this bill, an H-1B visa holder may begin to
work for a new employer when a non-frivolous, legally viable H-1B petition is submitted,
and no longer must wait for approval before doing so. If denied, the authorization will be
terminated, but it relinquishes the difficult waiting-period that leaves so many foreign
workers in precarious limbo.
At the day of the bill's signing,
anyone awaiting approval of an H-1B transfer may legally begin to work for their
new employer.
# 6. Allows for an extension of stay when application delays are the
fault of the INS:
For H-1B visa holders with a pending employment-based green card, and who filed a labor
certification or I-140 at least one year prior, the six year time limit it waived, with
extensions granted in one year increments until the green card petition is either approved
or denied.
# 7. Extends portions
of the 1998 H-1B legislation:
An extension has been granted from from October 1, 2001 to October 1, 2002 for the
attestation requirements governing for H-1B dependent employers. Also extended is
implementation of the new $500 retraining fee for H-1B visa petitions, from October
1, 2001 to October 1, 2002.
Additionally, Department of Labor investigation provisions in the 1998 law have been
extended by one year to September 30, 2002.
# 8. Recovers fraudulently used visas:
If an H-1B visa holder--whose visa was subject to the cap--has the visa revoked due to
fraud or willful misrepresentation, that visa will be returned to the visa pool as unused,
and available to another applicant, regardless of the year of original issue.
# 9. Requires that a National Science Foundation study be conducted:
The NSF is now compelled to conduct a "digital divide" study to make
determinations on how technology access impacts those in society who have it, versus those
who don't. The study must be complete within 18 months from the passing of the bill.
| 