As some of you may already know, both houses of Congress have passed the H1B
cap bill (S. 2045), which is now sent to the President for his signature.
Some of the provisions attached to the bill are surprising and extremely
beneficial, for example portability of I-140 approval and Labor Certificate,
recapture of unused immigration visas, partial elimination of per country
quotas for adjustment of status applications, and most importantly, the back
log reduction provision which calls for reducing all INS processing times
for pending applications to LESS THAN 180 DAYS.
Following is the summary of the H1B bill:
- H-1B Cap: Increases cap to 195,000 for FY2001, 2002, and 2003
- Backlog Clearout: The bill mandates that all H-1B cases approved in 1999
after the cap was reached and before October 1, 1999 are counted against the
FY1999 cap, and all cases filed before September 1, 2000 are to be counted
against the FY2000 cap, regardless of when they are approved. The caps for
those years are raised to accommodate however many visas this would require.
- Exemption from the Cap: Exempts individuals employed at higher
educational institutions and their related or affiliated nonprofit entities,
and individuals employed by nonprofit research organizations or governmental
research organizations from being counted toward the H-1B cap. (Exemption
from the cap for foreign graduates of U.S. masters or Ph.D. programs is
deleted). Also, H-1B physicians who have received a J-1 Conrad 20 waiver of
the two-year home residency requirement are exempt from the cap. Anyone
exempt from the cap by virtue of their employment with one of the entities
described above who subsequently changes employers to one that is not
described would be counted toward the cap in the year they change employers.
- H-1B Count: Prohibits the INS from counting someone toward the H-1B cap
if they have had H-1B status in the previous 6 years, unless the individual
would be authorized for a new six-year period of stay at the time the
petition is filed.
- Per Country Limits: Will allow unused employment-based immigrant visas in
a calendar quarter to be allocated in subsequent quarters without regard to
per-country limits. Allows an individual who has an I-140 filed on his or
her behalf and who would be subject to per-country limits to extend his or
her nonimmigrant status until the adjustment of status application is
decided.
- Portability of H-1B Status: H-1B nonimmigrants may change jobs upon the
filing of a new petition by the new employer as long as the individual is in
lawful status at the time of filing and has not engaged in any unauthorized
employment since his or her last lawful admission.
- Portability of I-140s and Labor Certs: Allows individuals who have filed
for adjustment of status and whose cases have been pending for 180 days or
more to change jobs or employers without affecting the validity of the I-140
or underlying labor certification, as long as the new job is in “the same or
a similar occupational classification” to the job in the original petition
and labor cert.
- Recapture of Unused Employment-based Immigrant Visas: Provides that any
employment-based immigrant visas that were available but unused in FY1999
and FY2000 are to be “banked” for use in future fiscal years if the demand
for employment-based visas exceeds the overall cap for that year. (This
shall take place in addition to any “spill up” of unused visas to the family
preferences that would otherwise occur.)
- Sixth-Year Extension for H-1Bs Awaiting Green Cards: Provides that H-1B
nonimmigrants for whom an I-140 has been filed and whose labor cert or I-140
was filed at least 365 days prior, may obtain extensions of their H-1B
status beyond the six-year maximum, in one-year increments, until their
adjustment of status or immigrant visa application is decided.
- Extension of Attestations and DOL Investigative Authorities Through 2003:
Extends the additional attestations and DOL investigative authorities from
ACWIA through FY2003
- Recovery of Fraudulent Visas: Provides that for any H-1B petition revoked
for fraud or willful misrepresentation, the visa number shall be added back
to the cap in the year the petition is revoked, regardless of when the visa
was actually issued.
- Additional Funds to INS for Processing: Increases INS’ portion of the
H-1B education and training fee to 4% from the current 1.5%
- Education and Training Provisions: Worked out in a compromise between
Senators Abraham, Kennedy, Lieberman and others.
55% of the H-1B education and training fees are to go toward DOL
demonstration programs and projects to provide technical skills training for
workers. Training shall not necessarily be at the level of a baccalaureate
degree, but preparation for workers at a broad range along the career
ladder. 75% of the grants shall be to workforce investment boards or
consortia of such boards in a region, to be decided in consultation with the
Dept. of Commerce. 25% of the grants will go to partnerships of at least 2
businesses or a business-related nonprofit organization that represents more
than one business, and may include any educational, labor, community
organization or workforce investment board. 80% of grants will be for skills
training in high technology, information technology, and biotechnology and
no more than 20% to training workers for skills in other H-1B-type specialty
occupations.
22% of the fees will go toward low-income scholarships instituted in ACWIA
(“Abraham scholarships”)
15% of the Fees will go toward NSF competitive grants for K-12 math,
technology and science education.
4% of Fees go to the Department of Justice and the INS for H-1B case
processing and enforcement of those attestations under their jurisdiction.
4% of fees go to the Department of Labor for enforcement and processing of
LCAs.
- Studies and Reports: Requires a new NSF study on the divergence of access
to high technology (“digital divide”), Dept. of Commerce to conduct a review
of existing public and private high-tech workforce training programs in the
United States (Kerry amendment).
- Kids 2000: Biden amendment from committee that provides after-school
technology grants to the Boys and Girls Clubs of America. Up to $20 million
may be appropriated for FY2001-2006 to the Attorney General to fund grants
under this program, such funds may come from the Violent Crime Control Trust
Fund.
- Backlog Reduction Provisions: The bill incorporates the text of the
Immigration Services and Infrastructure Improvement Act (S. 2586, introduced
by Senator Feinstein), which provides for the creation of a new Immigration
Services and Infrastructure Improvement Account (and authorizes
appropriations to fund this account) in order to reduce INS processing time
of all cases to less than 180 days and eliminate the backlog of pending
cases. The bill requires INS to provide a backlog elimination plan to
Congress within 90 days of the enactment of the bill, and annual reports on
their service provision situation and progress toward improvement.
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