Major Immigration Bill Passes Both Houses of Congress!
Posted Oct 04, 2000

On the evening of October 3, 2000, the U.S. Senate and the House of Representatives of the United States in Congress passed the Senate version of the Bill 2045. This Bill is a major victory for all of us who have lobbied strongly for our Congress to pass a measure that would help companies retain highly skilled professionals in a tight labor market and help the individuals who have been with companies for several years but are forced to leave the U.S. because of delays in processing by the INS and the U.S. Department of Labor, etc.

The Bill when signed by President Clinton will become the law and will be called the American Competitiveness in the Twenty first Century Act of 2000 ("ACTA").

Major highlights of ACTA are listed below :

Increase in H1B Quota and Fees

Total number of H1B Petitions or visas that can be issued in Fiscal Years 2001, 2002, and 2003 (which starts on October 1, 2000 and ends on September 30, 2003) will be 195,000 for each fiscal year. This substantially increases the numbers from the existing 107,500 and which would have reverted back to 65,000 from the next fiscal year (FY). A separate bill will increase the H1B "training fee" paid by most employers from $500 per application to $1,000 per application.

Exemptions from the H1B Quota

The H1B quota of 195,000 for each FY will not apply against a person who is employed and will work at a university or affiliated non-profit entity or government research organization. Also exempt from the H1B numerical limitation is a person who has previously been counted against the H1B quota. A person should only be counted once against the numerical limitation if the person again obtains a full six years of authorized admission on H1B status.

Per-Country Quotas for Immigrant Visas

With respect to immigrant visas, the per-country quota, which has been adversely affecting those from China and India and which the U.S. State Department had stated could possibly affect those from the Philippines in the near future, may have been resolved with this Bill. It has always been the case that not all of the available visas were issued, since most countries did not have enough applicants to use the total available. ACTA provides that if the INS or the U.S. State Department does not issue all of the immigrant visas that should be issued in that FY, the unused immigrant visa numbers should be made available to all countries without the per-country quota limit applying.

H1B Can Start Working Upon Filing H1B

A person who is already on H1B status is allowed to accept new employment and start working for the new employer immediately upon filing the new H1B petition with the new employer as long as the person has satisfied all of the following 3 criteria: 

• been lawfully admitted in to the U.S.

• has filed a non-frivolous H1B or other non-immigrant petition, which is pending for new employment

• has not been employed without authorization in the U.S. before the filing of the H1B petition.

The surprising and wonderful thing about this clause is that it is retroactive and applies to all those H1B petitions which were filed before, on, or after the date of the enactment of ACTA. So when the Bill is signed into law, those who are awaiting an H1B approval can start working for the new employer. If the H1B Petition is denied, then the person can no longer work.

H1B Extensions Beyond 6 Years Are Allowed

In a provision to penalize the Department of Labor and INS for their lengthy adjudications, ACTA provides that if labor certification or an I-140 petition has been pending for 365 days or longer, then the H1B six-year cap shall not apply against the person. If the person has an I-140 or an I-485 pending, then the INS will approve an H1B petition extension in one-year increments until a final decision is been made on the person's lawful permanent resident status. 

Employee Can Change Jobs or Employers if AOS Pending Over 180 Days

Certain job flexibility provisions have been added, for example, if an Adjustment of Status application has been pending for 180 days or longer, that Adjustment application will continue to remain valid even if the foreign national changes jobs or employers. This, as long as the new job is in the same or similar occupational classification as the job for which the petition was filed. 

Extensions of Certain Provisions

The "H1B dependent employer" provisions of the H1B law will continue until October 1, 2003, as also the Department of Labor's investigative authority which will be extended from September 30, 2001 until September 30, 2003.

Conclusion

Please note that since this Bill has not yet been signed by President Clinton, it is not yet considered law of the land. Although the White House has expressed some concerns about this Bill, it has not threatened to veto it and this Bill is expected to be signed by the President of the United States within the next several days. 

This is indeed an incredible victory for the pro-immigration lobbying forces and for each of you who have helped to make this happen. Details on the law and any follow-up will be posted on our website at murthy.com and in our weekly MurthyBulletin.