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H1-B Visa News H1-B Description | H1-B Application Checklist President Signs H-1B Bills Into Law President Clinton late yesterday signed S. 2045, the H-1B bill, and H.R .5362, the fee increase bill, with the official date of enactment thereby being October 17, 2000. Since most of S. 2045's provisions do not have separate enacting clauses, those provisions become effective as of yesterday. The only exceptions are Section 105, Portability of H-1B Status, which in subsection (b) states that the section will apply to "petitions filed before, on or after" October 17, 2000, and the H-1B Cap increase provisions of Section 102, which are effective as if enacted with ACWIA in 1998. The education and training fee, currently $500, will increase to $1000 two months after October 17, 2000, or by December 17, 2000. However, the new exceptions from the fee for elementary and secondary schools and nonprofits engaging in established curriculum-related clinical training of students at higher educational institutions are effective immediately. In his statement, the President also reaffirmed his commitment to the passage this year of the Latino and Immigrant Fairness Act measures (restoration of Section 245(i), NACARA Parity, and updating the registry date). The following is the President's signing statement: THE WHITE HOUSE My Administration has made clear that any increase in H-1B visas should be temporary and limited in number, that the fee charged to employers using the program should be increased significantly, and that the majority of the funds generated by the fee must go to the Department of Labor to fund training for U.S. workers seeking the necessary skills for these jobs. This legislation does those things. But the need to educate and train workers for these high-skilled jobs goes beyond what has been addressed here. I want to challenge the high-tech companies to redouble their efforts to find long-term solutions to the rapidly growing demand for workers with technical skills. This will require doing more to improve K-12 science and math education, upgrading the skills of our existing workforce, and recruiting from under-represented groups such as older workers, minorities, women, persons with disabilities, and residents of rural areas. Many companies have important initiatives in these areas, but we clearly need to be doing more. This legislation contains a number of provisions that merit concern. For example, one provision allows an H-1B visa holder to work for an employer who has not yet been approved for participation in the H-1B program. In addition, there are provisions that could have the unintended consequence of allowing an H-1B visa holder who is applying for a permanent visa to remain in H-1B status well beyond the current 6-year limit. I am concerned that these provisions could weaken existing protections that ensure that the H1-B program does not undercut the wages and working conditions of U.S. workers, and could also increase the vulnerability of H--1B workers to any unscrupulous employers using the program. For example, one of the key requirements of the H-1B program is that the foreign worker is paid the same wage as U.S. workers doing the same job. This legislation, however, by allowing H-1B workers to change employers before a new employer's application has been approved, could result in an employer -- knowingly or unknowingly -- not paying the prevailing wage. For these reasons, I am directing the Immigration and Naturalization Service, in consultation with the Department of State and the Department of Labor, to closely monitor the impact of these provisions to determine whether the next congress should revisit these changes made to the H-1B program. I had hoped that the Congress would take this opportunity to address important issues of fairness affecting many immigrants already in this country. We need to meet the needs of the high-tech industry by raising the number of visas for temporary high-tech workers. But we also must ensure fairness for immigrants who have been in this country for years, working hard and paying taxes. The Latino and Immigrant Fairness Act (LIFA) will allow people who have lived here for 15 years or more -- and who have established families and strong ties to their communities -- to become permanent residents. It will also amend the Nicaraguan Adjustment and Central American Relief Act (NACARA) to extend the same protections currently offered to people from Cuba and Nicaragua to immigrants from Honduras, Guatemala, El Salvador, Haiti, and Liberia who fled to this country to escape serious hardship. Finally, it will allow families to stay together while their applications for permanent resident status are being processed. These fundamental fairness provisions have been embraced by humanitarian groups, business groups, and Members of the Congress from both sides of the aisle. I will continue to insist strongly on passage of the Latino and Immigrant Fairness Act this year, before the Congress adjourns.
H-1B Legislation - Raise in Fee/Effective Date The following is text of the most recent legislation passed by Congress regarding the increased H-1B employer's fee: H.R.5362 One Hundred Sixth Congress Begun and held at the City of Washington on Monday, the twenty-fourth day of January, two thousand An Act To increase the amount of fees charged to employers who are petitioners for the employment of H-1B non-immigrant workers, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. AUTHORITIES RELATING TO THE IMPOSITION OF FEES. Section 214(c)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(9)) is amended-- (1) in subparagraph (A), by striking `(excluding' and all that follows through `2001)' and inserting `(excluding any employer that is a primary or secondary education institution, an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a), a nonprofit entity related to or affiliated with any such institution, a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, a nonprofit research organization, or a governmental research organization) filing before October 1, 2003'; and (2) in subparagraph (B), by striking `$500' and inserting `$1,000'. SECTION 2. EFFECTIVE DATE. The amendment made by section 1(2) shall apply only to petitions that are filed on or after the date that is 2 months after the date of the enactment of this Act. Speaker of the House of Representatives. Vice President of the United States and President of the Senate. END ***NOTE THE EFFECTIVE DATE: TWO MONTHS AFTER THE BILL IS SIGNED*** [Courtesy of American Immigration Lawyers Association] AILA Press Release - H-1B Legislation FOR IMMEDIATE RELEASE IMMIGRATION LAWYERS APPLAUD HOUSE VOTE ON H-1B; WASHINGTON, D.C. - The American Immigration Lawyers Association (AILA) hailed House approval on a voice vote of a measure allowing employers to retain temporary foreign professionals. But AILA also called upon Congress to approve other vitally needed immigration bills. “We are extraordinarily pleased that both Republicans and Democrats together stood in support of a measure that will help sustain our economic growth, and will help American workers prepare for well-paying, high-tech jobs by funding training programs for current employees and education programs for American students,” said Margaret A. Catillaz, AILA’s President. “We thank Speaker Dennis Hastert (R-IL) and Minority Leader Richard Gephardt (D-MO) for quickly taking up and passing S. 2045. We call on President Clinton to just as quickly sign the bill into law.” “Congress cannot lose sight of the fact that, before adjournment, it must address four other important immigration matters: due process reforms of the overly harsh 1996 laws, the restoration of Section 245(i), NACARA parity and updating the registry date. These measures do not merely make technical changes in a complicated law. The inequities of our nation’s immigration system are hurting people trying to reunite with their families and fleeing civil strife,” Catillaz said. “Passage of these measures also are central to continuing our current economic expansion, because they will help alleviate the dire and long-term worker shortages that are affecting businesses in all economic sectors –shortages that Federal Reserve Chairman Alan Greenspan has said are the greatest threat to our economic growth. “We urge Congress to restore American values of law, justice and fairness to our nation’s immigration system by passing much-needed reforms. By restoring American values, we also will be helping to ensure that the longest economic expansion in U.S. history continues unabated.” AILA Issue Paper - H-1Bs At A Glance What are H-1Bs? Highly skilled: H-1Bs can be hired only for "specialty occupations," those jobs requiring the equivalent of at least a bachelor's degree in the field. Professionals: H-1Bs must be professionals such as doctors, engineers, professors, accountants, lawyers, physical therapists, and computer professionals. How Many Enter and Where Do They Come From? Why Do Employers Hire H-1Bs? Global market expertise: Employers often need H-1B professionals to bring special expertise in overseas needs, markets or trends that enables U.S. businesses to compete globally. What Must Employers Do? Protect working conditions: Employers cannot use H-1B professional to break a strike, and must notify their U.S. workforce when they hire an H-1B professional. Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts, including hours, shifts and benefits. Recruit in the U.S. and Not Displace U.S. workers: Employers who use a lot of H-1Bs must first try to find U.S. workers before they can hire an H-1B. They also must attest that they are not hiring the H-1B if they have laid off or displaced a similarly situated U.S. worker. Employers must attest to the above protections by affirmatively filing with the Department of Labor (DOL) and by maintaining a file open to the public. Be subject to penalties: Failure to comply with DOL regulations can result in an audit, civil and administrative penalties, payment of back wages, and even debarment from participating in key immigration programs. H-1B Update INS Commences H-1B Adjudications Earlier this month, Immigration and Naturalization Service (INS) announced that they would be halting the adjudication of H-1B visas filed after October 25, 1999 in order allow the four Service Centers to get closer together in processing times, as well as to "get a handle on" the H-1B count for the current fiscal year, FY00. The INS has now announced that the halt on adjudications is over, and the processing of H-1B cases will continue effective today, December 15, 1999. The announcement by the INS that a count was going to be conducted caused much concern and speculation that perhaps the 115,000 cap on H-1B visas for the current fiscal year was soon to be reached. However, no information has been reported by the INS regarding the current count. The latest INS announcement included an assurance that the count was not close to being reached. The INS has now indicated that the reason for the halt was simply to give Service Centers who were behind in adjudications time to catch up. While the INS has commenced processing of H-1B visas, it has indicated that similar pauses in processing will be likely in the future (even as soon as after the Christmas holiday). H-1B Update There has been a proposal pending before Congress to raise the number of H1-B visas permitted during any given year. However, it has been stalled at least until next year. In testimony before Congress, a CEO of a Fairfax, Va. based news and career information service detailed the problems regarding the information technology labor crunch. She testified that her company spent months trying to fill a system administrator position and finally found a qualified candidate from Mexico. It took an additional 4 months to get the H1-B approval for the woman to begin working. She further testified that these types of delays are particularly difficult for a new company to deal with. This problem is compounded by the fact that the current cap of 115,000 could be reached by March or April 2000 or possibly earlier if the INS issued too many H1-B visas last year and applies the overage to next year's cap. The internal INS audit of the number of visas issued last year is still underway. Congress Offers No Worker Relief. No Action Expected on H-1B,
Tax Credits Until Next Year Congress Offers No Worker Relief No action expected on H-1B, tax credits until next year Patrick Thibodeau Computerworld, October 25, 1999 Congress won't be offering help, at least in the short term, to companies in need of high-tech workers or tax credits for training people in high-tech jobs. Legislators aren't expected to take any action on proposals to raise the H-1B visa cap until sometime next year and may not act before this fiscal year's cap is reached. Moreover, a coalition of trade associations seeking congressional support for job training credits was told last week by a White House official that the tax credit plan had problems and wouldn't be considered until next year. At a Senate hearing last week on the H-1B visa issue, Susan Williams DeFife, CEO of WomenConnect.com Corp., a Fairfax, Va.-based news and career information service, testified about the information technology labor crunch. She said for an emerging company, "one unfilled tech position can severely impact our ability to grow." DeFife said she spent months trying to fill one system administrator opening until she found a young woman from Mexico who was completing course work in the U.S. Hiring her meant going through the H-1B visa process, and the company had to wait another four months before such visas were available. The current 115,000 cap on H-1B visas could be reached early next year -- and perhaps sooner if the Immigration and Naturalization Service (INS) issued too many visas in the fiscal year ended Oct. 1. The INS is now auditing its work. High-tech industry trade groups have been pushing for an increase in the H-1B cap and for job training tax credits. Rep. Jim Moran (D-Va.) and Sen. Kent Conrad (D-N.D.) earlier this year introduced bills that would provide tax credits of up to $6,000 per year for job training. Moran, speaking at a forum on the tax credit last week, said incentives are needed because while it's in the country's interest to provide training, it's not necessarily in a company's interest to pay for it. A company can invest in training an employee only to lose that person "to another company that isn't willing to make that investment," he said. But Tom Kalil, a senior director at the president's National Economic Council, said the chances of quick approval of the tax credits are slim. He said administration officials are concerned that the credit rewards companies for training they are already doing. The "best opportunity" to move forward on this legislation will be for the industry to make "a stronger case" to have it included in next year's budget, Kalil said. First H-1B Cap Update For FY2000 The American Immigration Lawyers Association has provided the first H-1B visa cap update for Fiscal Year 2000. The California Service Center has reported that they have about 5,937 applications with an October 1, 1998 start-date left to process. However, the Vermont, Nebraska, and Texas Service Centers have not supplied any numbers. It is currently estimated that about 25,000 cases total have been adjudicated and that there are about 14,000 remaining. H-1B Update It was recently announced that the 106th Congress of the United States will not take up legislation to increase the H-1B cap during its first legislative session. Senate Majority Leader Trent Lott, a Republican from Mississippi, hinted that the Senate may take up the bills in its second session. The American Immigration Lawyers Association (AILA) urges affected corporate representatives interested in increasing the annual H-1B cap to contact their Senators and Representatives. H-1B Legislation Introduced In The Senate Three prominent Republican Senators are cosponsoring legislation that would increase the number of H-1B visas available annually. The New Workers for Economic Growth Act, introduced by Phil Gramm of Texas, Trent Lott of Mississippi and Mitch McConnell of Kentucky, would raise the annual limit on H-1B visas to 200,000 for fiscal years 2000, 2001 and 2002. H-1B visas have been the subject of debate for a few years now. In 1998, after months of anticipation and pressure from high tech firms, Congress finally passed the American Competitiveness and Workforce Improvement Act. This created a temporary increase the available H-1B visas, 115,000 for 1999 and 2000, 107,500 for 2001, after which the annual limit would revert to 65,000. Like the 1998 law, this new bill would only temporarily raise the cap, but under the new proposal, two significant groups of workers would not be subject to the limit. First, those who have attained a master’s degree or higher in an area related to the intended employment and receive wages or similar compensation of at least $60,000 annually would be admissible without regard to the numerical limit. The second group that would be admissible without numerical limit would be those with a bachelor’s degree or higher who will be employed at an institution of higher learning. Seasoned congressional watchers feel it is unlikely that Congress will pass any new H-1B legislation this year. However, next year’s presidential election campaign may create the necessary pressure to push a bill through Congress, as immigration will doubtless be an issue during the campaign. Silicon Valley companies have poured money into the campaigns of many of the presidential candidates, and the H-1B issue is foremost on the legislative agenda of many of these firms. Bill to Increase H-1B Quota All Service Centers Have Begun FY2000 H-1B Adjudications All four of the Immigration and Naturalization Service (INS) regional Service Centers (Vermont/Eastern, Nebraska/Northern, Texas/Southern, California/Western) have now begun to adjudicate H-1B petitions that count toward the FY2000 Fiscal Year. The Texas and Nebraska Service Centers have reported that they will most likely complete the adjudications of all cases received up to one month before the beginning of the 2000 fiscal year (i.e. filed before September 1, 1999) by October 1, 1999. The Texas Service Center reportedly has fewer than 10,000 cases pending at this time. As of August 16, 1999, the Texas Service Center reported that they were working on petitions with a receipt notice date of May 24, 1999 or before. The Vermont and California Service Centers reportedly have many more cases pending and much larger backlogs. While they have also begun adjudications of H-1B petitions toward the 2000 Fiscal Year, they will take longer to adjudicate the petitions based upon their tremendous case load. Bill to Increase H-1B Quota Service Centers Beginning to Process FY2000 H-1B Petitions A memorandum from the American Immigration Lawyers Association
(AILA) More information will be provided as it becomes available. INS Memo further clarifies new rules on Advance Parole applications
for H-1B and L-1 visa holders In June, the INS issued a regulation abandoning the longstanding policy that H-1B and L-1 nonimmigrant visa holders applying to adjust to permanent residency in the US must reenter the US with an advance parole document or risk being deemed to have abandoned their green card applications. The agency has now issued an internal memorandum clarifying various aspects of the regulation. The memo first notes that immigration officers are not to deny an application for an extension or change of H-1 or L-1 status merely because an adjustment of status application is pending. The memo also makes clear that H-1 and L-1 applicants need not seek advance parole to travel abroad. The H-1 or L-1 visa holder may seek to be readmitted to the US in the same status provided that he or she has a valid H-1 or L-1 visa (for those not visa exempt), has the original I-797 receipt notice for the I-485 and remains eligible for H-1 or L-1 classification. The INS emphasizes that H-1 and L-1 nonimmigrants must still follow all of the regulations in order to maintain their visa status. So, for example, changing jobs without properly applying for a change of status would cause the loss of the H-1B visa status even though the individual may remain working legally under an employment authorization document tied to the adjustment application. This can be a problem if the adjustment application is denied later on since the applicant would no longer be in legal status. The INS also addresses the issue of what to do when an adjustment of status application is approved while the H-1 or L-1 visa holder is outside the US. According to the INS, a Form I-797 approval notice for an adjustment of status application is insufficient to establish an arriving alien’s entitlement to lawful permanent residence. An H-1 or L-1 nonimmigrant or family member will be granted deferred inspection upon showing the I-797 approval notice. The applicant would then complete processing at a local INS office. The INS is issuing this policy because H-1 and L-1 visas are "dual intent" categories under the Immigration and Nationality Act. Normally, nonimmigrant visa holders who apply for adjustment of status applications are presumed to be intending immigrants and are no longer eligible to maintain nonimmigrant status. However, H-1 and L-1 are not subject to this presumption under the law. |
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