October 2000 - H1B News
New H1B bill approved in the senate and House

The senate voted 96-1 to approve the new H1B bill S.2045

The House of Representatives passed the H-1B bill (S. 2045) on a voice vote

To become as a law, this bill is to be signed by the President within this week

Highlights of this bill

Increases cap to 195,000 for FY2001, 2002, and 2003

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.

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 Conrad 20 waiver are exempt from the cap. Anyone exempt from the cap by virtue of their employer 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.

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

Will allow unused employment based visas in a calendars 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

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

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.

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.)

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

Extends the additional attestations and DOL investigative authorities from ACWIA through FY2003

Provides that 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

Specifies how funds raised from the will be allocated for education and training initiatives

Increases INS portion of the H-1B education and training fee to 4% from the current 1.5%

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.