H1B Bills Finally Signed by President and Become Law
Posted Oct 18, 2000

It is now finally official! Last evening, on October 17, 2000, the President signed S. 2045, the American Competitiveness in the Twenty-First Century Act" (ACTA), as well as H.R. 5362, the bill that increases the H1B "training fee".  A detailed summary of the provisions of S. 2045 was included in the October 6, 2000 edition of the MurthyBulletin (pdf file) while H.R. 5362 was discussed in the October 13, 2000 issue. President Clinton issued a statement in connection with signing the Bills pointing out the strengths and weakness of the Bills and his concerns for the protection of U.S. workers. 

Many of the provisions are effective immediately, while some others may need to be further explained in INS regulations. Most major pieces of legislation have required regulations to implement them, and it can take some time for regulations to be issued.

Some provisions, such as the increase in H1B numbers under section 102, the changes to the immigrant visa quota system and the allowance of extensions of temporary status under section 104, the increased portability of H1Bs under section 105, and the ability to extend H1B status under section 106 (a) and (b), should be in effect already.  The education and training fee, currently $500 per H1B Petition, will increase to $1000 only from December 17, 2000. However, the new exceptions from the fee for elementary and secondary schools and nonprofit organizations which engage in established curriculum-related clinical training of students at higher educational institutions, will become effective immediately. One note about the immigrant visa quotas: it may take a little while until the U.S. Department of State's Visa Bulletin chart shows "current" for EB-2 and EB-3 for countries such as India and China. As mentioned in the October 13, 2000 MURTHYBULLETIN, there should be some movement in December 2000, and we anticipate further improvements early next year, but the effect will not be immediate.

Many of you have asked us at the Law Office of Sheela Murthy regarding the ability to switch employers immediately after the 180 day period. This provision is addressed in Section 106 (c) of ACTA. This provision appears to allow a person to change jobs if the Application for Adjustment of Status (I-485) is pending for a long time, but the details are rather unclear. Section 106 (c) provides that if the I-485 is pending for 180 days or more, then the I-140 petition "shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification…." This language raises many questions. Will the person have to send in documentation to the INS, such as a letter from the new employer, stating that it is the same or similar occupation as the one mentioned in the I-140? Will this proof have to be provided only if INS asks for it, or does the person have an affirmative obligation to inform INS?

More fundamentally, how likely is it that INS will be willing to give up their right to evaluate the new employer's ability to pay the prevailing wage for the Beneficiary, which is a major issue with most I-140 Petitions?  Does this law automatically qualify any subsequent employer, even if they do not really have a job opening but they are just trying to help out a friend or relative? Under the legal immigration system that has been in place for several years, the U.S. Department of Labor and INS have had the opportunity and the responsibility to make sure that a job offer is genuine, that the employer has a need for the worker, that the employer is offering the prevailing wage rate, and that the employer has the financial ability to pay the wage. Surely these governmental agencies will not give up these powers, and perhaps the U.S. Congress did not intend to take them away under ACTA. It could be that this section just has some unintended consequences.

At any rate, it is more than likely that regulations will be needed to implement this provision. Therefore, it is not safe to rely upon it at this time. There is really much that would need to be explained further before people would know exactly and in what situation they could leave their employer and what risks, if any, remain. 

It is also interesting to note that if the ambitious backlog reduction plans under Title II of this law meet their goal of adjudicating all permanent applications (such as I-140s, I-130s, I-485s, among others) within 180 days, then no case will be pending for 180 days or more, so it is likely that no one would be covered by 106 (c); it simply would not be needed. The hope is that processing times could be brought under control, so the various measures under section 106 ("Special Provisions in Cases of Lengthy Adjudications") would not be needed.

Certainly, there will be much more to say about this new law as time passes and the INS and U.S. Department of State have a chance to comment on it. S. 2045 is certainly a welcome development for many of us!