Chat Transcript

The H-1B Cap & More - All the ins and outs of the Bill: What it means to existing and aspiring H-1B holders:

Jennifer Wipf: Welcome everyone to our chat on the new H-1B Bill that was just passed. Leading immigration attorney Carl Shusterman will be joining us momentarily to discuss this late-breaking news with you, and what it means for aspiring and existing H-1B applicants, as well as those who hold and/or wish to transfer an H-1B. We have a full house tonight, with a huge number of questions, so bear with us. Please remember that these questions are of a general nature, as are Mr. Shusterman's answers, and should not be construed as legal advice.

OK, I Have Mr. Shusterman on the phone line now. Welcome Carl!

Carl Shusterman: Good evening Jennifer, and everyone. Let's start with the questions.

Question: When will this Bill go into effect?

Carl Shusterman: The new law is set to go into effect as soon as the president signs the bill. Hopefully that will be within the next week or two. I am sure President Clinton will also wait until H.R.5362 is passed by Congress and sent to his desk. This bill would raise the fee that employers are required to pay to submit an H-1B petition from $500 to $1000. (Editor's Note President Clinton signed both bills into law on October 17, 2000. The H-1B Cap Bill became effective immediately while the fee increase bill becomes effective 60 days after it was signed into law.)

Question: I have filed I-485. Will I be able to change job after 180 days if the bill is signed into law? In my case, the I-485 filing date is prior to the enactment of the law.

Carl Shusterman: Yes, as long as your new job is in the same or a similar occupational classification as the one for which the petition was filed.

Question: If I have completed the I-140 but am waiting for the priority date to become current, will I be eligible for 1 year H-1B increments?

Carl Shusterman: Yes, since you are unable to adjust your status because of per-country quotas, you are eligible to extend your H-1B status. However, you are not limited to extensions in one-year increments.

See the answer to your question in the third topic on the new H-1B Bill FAQ at:

http://shusterman.com/h1b-faq.html

Question: I am an Indian nurse from Dubai whose employer filed a visa petition at the VSC. I got approval in June. With the enactment of the new law and abolition of the per country quota, when will our visa date be current?

Carl Shusterman: You were one of the lucky ones, since the EB-3 priority date for India is currently at February 8th, 1997 and holding! See:

http://shusterman.com/vb.html

The bill alters, but not abolish, per-country quotas. You can only benefit from this modification if there are unused visa numbers in the world wide category. I would not have been optimistic about the availability of unused visa numbers, except that Section 106 of the new law which was added to the bill shortly before passage, provides that EB visas which were lost between fiscal years 1999 and 2000 due to INS processing delays may be "recaptured" as long as there is excess demand in the EB-1, EB-2 and EB-3 categories.

I imagine that the number of visas which may be recaptured exceed 100,000, and during the next few months the EB backlogs may disappear. However, just as surely as they will disappear, they will recur within the next couple of years unless Congress increases the number of people who may immigrate through employment.

Question: Under the new law H-1B transfers can begin work when a petition is filed. Is a petition filed when mailed or when the employer receives a receipt notice?

Carl Shusterman: Good question. It's one which cannot be answered clearly and definitively at this time. The INS will need to issue regulations in order to implement the bill as soon as it is signed into law. It is important that individuals and organized groups of immigrants and their employers comment on whatever regulations are issued by INS. Often, the INS will interpret sections of law very restrictively. For instance, in the question you raised, INS may require that you receive an official INS receipt before changing jobs. However, Section 105 of the bill allows you to "accept new employment upon the filing" of a new petition, not upon receipt.

Incidentally, this particular section applies to petitions which were filed prior to the effective date of the law. See:

http://shusterman.com/s2045txt.html

So if your new employer files a petition for you to change jobs tomorrow, and President Clinton signs the bill 2 weeks from today, my view is that  you can change jobs the moment the President signs the bill into law.

Question: Could you please explain the prerequisites for H-1B extension beyond 6 years. Different websites (Attorneys' sites) seem to interpret this clause in the new bill differently.

Carl Shusterman: There are two sections of the law which permit extensions beyond six years. The first is Section 104(c). This section applies to any alien not just someone in H-1B status. The person must be the beneficiary of a "filed, not approved" EB-1, EB-2 or EB-3 petition. They must be from a country which is subject to a backlog because of the per-country quota, currently either India or Mainland China, and they are allowed to apply for extensions until their application for adjustment of status is decided. Section 104(c) says that the Attorney General "may" approve such an application. It does not say that the Attorney General must approve such an application. You can imagine that if someone is in tourist or student status, but is applying for permanent residence, the INS may want to deny their application.

However, Section 106 provides that the extensions shall be granted past the six year limit to the following persons H-1B workers who are beneficiaries of EB visa petitions, or who have submitted applications for adjustment of status, and only if 365 days or more have elapsed since (1) their employers filed applications for Labor Certification on their behalf, OR (2) since an EB petition has been "filed" on their behalf. Notice that an H-1B worker whose application is still with the Labor Department is NOT eligible for an extension under Section 106.

To read the exact wording of both of these important provisions, see the complete text of the law which was passed by Congress on October 3rd, 2000 at:

http://shusterman.com/s2045txt.html

Also useful is the analysis of the law prepared by the American Immigration Lawyers Association at:

http://shusterman.com/s2045analysis.html

Question: Hi Jennifer, I have cleared labor and my I-140 is approved. After this I switched employers. Can I still file a I-485 with my previous employer? Will the petition be approved?

Carl Shusterman: Only if you intend to return to work for that employer.

Question: Would primary medical care and specialties be considered "same or similar occupations" for purposes of employer switch after more than 180 days of pending AOS?

Carl Shusterman: In my view, definitely. However, after spending most of  this weekend writing comments on INS' new NIW regulations for physicians, one never knows how restrictive INS will be on this issue. The law seems to give you a lot of latitude since it says that your new job must be "in the same or a similar occupational classification as the job for which the petition is filed." See Section 106(c) of the bill.

Question: If I change jobs while I-485 is pending (more than 6 months), does it have to be in the same geographic location?

Carl Shusterman: There is no requirement in the bill that the job be in the same geographic location.

Question: As per the bill, if one changes companies during I-485 processing (after 180 days), what documents are needed from the old company to transition the GC process? Does it need to start all over from I-140?

Carl Shusterman: After the I-485 has been pending more than 180 days, the bill allows you to change jobs subject to the restrictions quoted above. There is no need to restart the process or to file a new Labor Certification, a new EB petition, or a new I-485. However, INS regulations will no doubt specify what the agency wants you to supply as evidence to prove that you worked for employer #1 for the first 180 days, and then worked in the same or a similar job for employer #2 after that. The bill not only does not specify the location of the new job, but does not specify the rate of pay or any other requirements. I believe that Congress did this purposely to deflect charges that the current system is a type of  "indentured servitude." However, the INS may, in their regulations, seek to impose requirements in excess of what Congress intended.

Question: Will the job change provision after applying 180 days for adjustment of status apply to persons who have already applied and have been waiting more than 180 days?

Carl Shusterman: My reading of Section 106(c) which is the 180 days rule for changing employers after an application for adjustment of status has been filed, is that it takes effect as soon as the law is signed by the President. Therefore, if you have already been waiting for over 180 days for your status to be adjusted, you may change jobs as soon as the President signs the law. This is definitely an issue that you would want to discuss with your immigration attorney before changing jobs.

Question: What will the cap be this month, October?

Carl Shusterman: There are no monthly caps. Assuming the Bill is signed into law by the President, the annual cap will be 195,000.

Question: What happens if your H1 visa transfer is rejected?

Carl Shusterman: You can only change employers upon filing a "nonfrivolous" H-1B transfer application. Section 105 provides that "if the new petition is denied such employment authorization shall cease." In most cases, if your previous H-1B petition is still valid, you can return to work for your previous employer. If it is no longer valid, you had better take quick action to file a new petition and get back in lawful non-immigrant status.

Question: Would the new H1-B immigration bill operate retroactively for those who had been laid off by past employers during an I-485 process even though the petition was denied due to the job loss?

Carl Shusterman: No.

Question: Will the section 104 spillover enable priority dates for India EB-3 to get current and by when?

Carl Shusterman: In my opinion all the EB categories with the exception of unskilled workers will be current within the next 6 months.

Jennifer Wipf: Many of you have asked about this bill relative to whether the 6 year plus H-1B extension is retroactive. Mr. Shusterman will now briefly discuss that issue.

Carl Shusterman: As I have stated several times during this chat, most provisions of the bill will become effective as soon as it is signed into law. However, I see very little in the bill that is retroactive. Therefore, if your sixth year H-1B expired prior to this bill becoming a law, I do not believe either Section 104 or 106 will enable you to regain your lost status.

Jennifer Wipf: Everyone, I provided Mr. Shusterman with all the questions I was able to log, and he answered nearly all that were a) relevant to the new H-1B bill, b) clear and c) not duplicate questions. Many questions were duplicates, so please check back with us within the week for the transcript of this chat, so you can read this in clear detail.

Carl Shusterman: We have received so many questions tonight, and many of them are excellent ones, that we could easily continue this chat for another 2-3 hours. What I suggest, however, as an alternative, is to wait until the President signs the bill into law. There may be additional amendments to the bill, in addition to the one increasing the filing fee, and some of  these may regard H-1B extensions in excess of 6 years, something President Clinton is very concerned about.

As I will announce in the October issue of Shusterman's Immigration Update, which should be e-mailed to subscribers within a week, from November 27th to December 4th, I will be conducting a discussion with LegalElite.com. You may go to:

http://shusterman.com/toc-le.html

and register for this discussion. In a few weeks I am sure that we will have additional information on the H-1B bill and I will try to further clarify some of the excellent questions that were raised in this chat. Thanks to everyone who participated in tonight's chat.

And I look forward to discussing this subject with you again in November.

Jennifer Wipf: Everyone, you can stay for open chat amongst yourselves if you'd like, but I'm afraid Mr. Shusterman needs to leave now. I hope you found our chat helpful, and good luck! I'm turning moderation off now.

Thank you so much for the prompt and through insight you've provided one and all Carl. Good night!

Carl Shusterman: You're welcome. Good night!

Click here for the FAQ Style Transcript

Remember to follow-up with these popular and informative documents:

Breakdown of the H-1B Bill and What it Means, and the Green Card / Visa Page at About

The New H-1B Bill FAQ and H-1B Page at Shusterman.com.

and Daily Immigration Headlines at Born Abroad

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