1. Increase In H-1B Visa Numbers.
The Immigration and Nationality Act ("INA") had restricted the number of new H-1B aliens to 115,000 for the year ended September 2000. Section 102 of the Act increases the number, as follows:
- For the Year ended September 30, 2000: - to an unlimited number to accommodate all pending petitions filed before September 1, 2000
- For the Years ending September 30, 2001, 2002 and 2003: - to 195,000
Section 103 of the Act excludes from the H-1B numerical count H-1B aliens who are to work for a university or nonprofit research facility. It also excludes intermittent or seasonal H-1B workers, as well as any person for whom an H-1B visa petition has been approved in the prior six years, unless the alien would be eligible for an additional six years of H-1B visa status. Finally, Section 103 clarifies that multiple petitions filed on behalf of one alien are to be counted only once.
Gibney Observations: It is unclear if the 195,000 available H-1B visa numbers will be sufficient to meet demand during each of the next three fiscal years. What is clear, however, is that the Service must now devise a new system for counting H-1B visa numbers that will reflect Section 103 of the Act. Given the difficulties that the Service has historically encountered in establishing a reliable system, this may continue to be a problematic area, resulting in a slowdown in adjudications.
1. Increase In User Fee.
HR 5362 raises the user fees from $500 to $1,000, effective December 15, 2000.
Gibney Observations: As with the $500 user fee that became effective in 1998, the employer must pay the entire fee. As before, the user fee is not required for second extension requests.
2. Revision To The Per Country Ceiling For Employment Based Immigrant Visas And Piercing The Six Year H-1B Cap For Natives Of Countries With Employment Based Immigrant Visa Backlogs
Section 104 (a) of the Act revises the method of allocating employment based immigrant visa numbers so that unused employment visa numbers in a calendar quarter for all countries can be allocated in that quarter to countries that are experiencing visa number backlogs.
Section 104 (c) of the Act permits employers to pierce the maximum cap of six years imposed on H-1B aliens for whom an I-140 petition has been filed,* but for whom an immigrant visa number is unavailable. In these situations, the Act permits an extension of stay until such time as an I-485 application for adjustment of status has been approved.
* It is not clear if Congress intended the provision to apply to petitions that have been merely filed, or if they must have been approved.
Gibney Observations: Section 104 of the Act is specifically designed to address visa backlogs that have existed in the Indian and Chinese second and third preference quotas. All countries have historically been limited to 25,620 immigrant visas (employment and family based). Due to the demand for employment visas by natives of China and India, considerable backlogs have emerged in those countries' second and third preference quotas. The ability to transfer unused employment based visas on a quarterly basis from countries that are not oversubscribed to those countries that are experiencing backlogs will result in a reduction of the backlogs in those countries. However, even if this provision does not result in immigrant visa numbers becoming available before an H-1B alien has reached his/her maximum H-1B stay, such persons may extend their H-1B visa status indefinitely, if an I-140 petition has been filed on their behalf. In sum, Section 104 will bring significant relief to natives of India and China, who are concerned that their employment in the United States will be interrupted due to immigrant visa backlogs.
3. Increased Portability Of H-1B Status
Section 105 of the Act permits nonimmigrant workers who have previously been issued an H-1B visa or have previously been classified in H-1B visa status to accept employment with a new employer upon the new employer's filing of a non-frivolous H-1B visa petition. To be eligible, the nonimmigrant must have been lawfully admitted to the U.S., and must not have been employed without authorization. This provision is effective for all pending petitions on the date of the Act and all petitions filed on or thereafter.
Gibney Observations: This provision raises a number of issues. First, Service regulations will need to clarify which document(s) will satisfy the Form I-9 requirement. In the interim, employers should use a copy of the Fedex or other Airway Bill confirming the date of filing at the Service offices and a copy of the alien's current Form I-94, as evidence of employment eligibility. Employers should use identity documents that are currently listed in the Service's regulations. Secondly, the provision applies to persons whose Form I-94 has not expired. This language raises the possibility that persons may qualify for this provision even if they are no longer in technical compliance with their status, i.e. they have stopped working for their approved employer(s). Thirdly, the Act states that if the new petition is denied, the employment authorization with the petitioning employer will terminate. Accordingly, foreign nationals who terminate their authorized employment positions and take on employment with a new employer without an approval in hand, incur the risk that the new petition can be denied and that they may be left without any position. Note that they can revert to their former employer, providing the Form I-797 with that employer remains valid, and further providing their previous employer is prepared to resume their employment.
Finally, the statutory language implies that this portability provision applies to persons in the U.S. in any visa status, if they have previously held H-1B status. Thus, a person who is currently in the U.S. in E-2 status, but who previously held H-1B visa status many years ago, is arguably able to take on new H-1B employment when the employer files the petition. The regulations will need to clarify this point.
4. Lengthy Adjudications In Immigrant Cases
(A) Extending H-1B Visa Status Beyond The Six Year Cap.
Section 106 (a) of the Act permits the Service to extend the visa status of H-1B nonimmigrants, in annual increments, beyond the six year maximum if:
(i) an I-140 petition has been filed on their behalf; and (ii) more than 365 days have elapsed since the filing of their labor certification an/or I-140 petition.
Gibney Observations: This additional provision permitting the piercing of the H-1B six year cap will be of particular benefit to many immigrant pipeline cases. When a labor certification case was filed with the DOL more than 365 days ago, the provision can be triggered by the filing of an I-140 petition on behalf of the H-1B person. Interestingly, the language of Section 106 (a) places no restriction on the type of I-140 that is filed. So, for example, it appears that an I-140 Priority Worker petition can arguably be filed by the H-1B alien on his or her behalf and qualify for the benefits of Section 106 (a), even though the position and/or its terms and conditions may be unrelated to the position offered in the pending labor certification. Accordingly, the mere filing of an I-140, whether it is submitted by the alien, another employer or the same employer, appears to be sufficient for the H-1B alien to receive an extension of H-1B visa status beyond the six year cap.
One group of cases that may not be able to take advantage of Section 106(a) relief is those that have taken an RIR labor certification approach rather than the traditional method. In such situations, it is unlikely that, even when combined with the time that an I-140 has been pending, more than 365 days will have elapsed since the filing of a labor certification application. (It remains to be seen if DOL regulations pertaining to the "conversion" of a traditionally filed labor certification case to an RIR approach will be finalized, and if such converted cases can use the earlier filing date for Section 106 (a) relief).
(B) Job Flexibility For Adjustment Applicants.
Section 106 (c) of the Act permits employment based applicants for adjustment of status to change jobs and work for another employer if the adjustment application has been pending with the Service and remains unadjudicated for more than 180 days. The Act requires, however, that the new job must be in the same or similar occupational classification as the job for which the petition was filed.
Gibney Observations: This provision is remarkable in a number of respects. First, although existing law had never required an alien actually to engage in employment with the sponsoring employer upon adjustment of status, failure to take on such employment could be used by the Service as evidence that the employee never intended to take on the position offered. The absence of such a bona fide intent has been grounds for inadmissibility under Section 212(a) of the INA, since it suggested fraud in the underlying labor certification or immigrant petition process. Section 106 (c) of the Act now provides a license in these "long" pending cases for adjustment applicants to take on employment with any U.S. employer in any location of the U.S., if it is in the same or similar occupational classification. Accordingly, Service delay in adjudicating applications for adjustment of status can mean that the terms and conditions of the underlying labor certification or immigrant visa petition are never met.
Second, it is unclear how the Service will react to the Act's language of "same or similar occupational classification." It is possible that the Service will place the burden on the alien to demonstrate, through a separate filing, that his/her new position is the same or similar to the one pending with the Service.
Finally, Section 106(a) of the Act alters the leverage that petitioning employers have over adjustment applicants with respect to their retention. From 181 days after the filing of an adjustment application, the adjustment process becomes employee driven. Employees in adjustment proceedings now have the ability to sever their relationships with their petitioning employers and work for another employer without the benefit of having received immigrant status.
(C). Recapture Of Unused Employment Based Immigrant Visas
Section 106(d) of the Act provides that any unused employment based immigrant visa numbers might be carried over to employment based numbers in the subsequent fiscal year.
Gibney Observations: Congress has now introduced a mechanism for unused worldwide employment based visa numbers to be carried over for use in subsequent years. This carry forward provision will prevent thousands of unused employment visa numbers from being lost forever, either as a result of a small demand in a particular year, or because of Service failure to adjudicate an adjustment application in the fiscal year it was filed.
6. H-1B Portability In Corporate Mergers/Acquisitions
The Visa Waiver Bill legislation provides that an amended H-1B visa petition need not be filed when a petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, when a new corporate entity succeeds to the interests and obligations of the original petitioning employer and when the terms and conditions of employment remain the same but for the identity of the employer.
Gibney Observations: While this provision is designed to alleviate some of the immigration related paperwork involved in restructuring a corporation that employs H-1B nonimmigrant workers, it is not entirely clear what types of transactions will be covered. For example, must a new employer assume all, or substantially all, the assets and liabilities of an original petitioning employer to avoid having to file an amended petition? When the new employer is excused from filing an amended petition, will it also be excused from the need to file a new Labor Condition Application? Again, detailed regulations from the Service and the Department of Labor will be needed to address and clarify these and many other issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
