(a) institutions of higher education

(b) nonprofit entities related to or affiliated with institutions of higher education

(c) nonprofit research organizations

(d) governmental research organizations

Physicians who obtained J-1 waivers under the "Conrad 20" program are also exempt from the cap. Please note that, under the separate law that increases the training fee from $500 to $1000 from December 17, 2000, the following additional types of employers are exempt from the fee, though their H1B employees will still be counted toward the quota:

(i) elementary and secondary schools; and

(ii) non-profit institutions providing certain curriculum-related training programs for students.

As indicated in the October 27, 2000 MurthyBulletin article, the training fee exemptions are in effect since October 17, 2000. It is only the $500 training fee increase that is delayed to December 17, 2000. (For further comment on the two new exemptions, refer also to the article in the MurthyBulletin of November 10, 2000 regarding a discussion between AILA and INS headquarters. A hint on claiming the new exemptions appears as item (c) in that article.)

This section also did not raise any difficult questions as to its meaning or legal effect.

Section 104 : Spillover of Immigrant Visa Numbers, and Extension of Nonimmigrant Status for Persons Awaiting Current Priority Date

104(a) and (b) : Spillover of Immigrant Visa Numbers

As with the sections mentioned above, subsections (a) and (b) of section 104 are reasonably clear. These subsections provide relief from the per-country limits that have caused much hardship and delay particularly to applicants from China and India. As readers will observe from the December 2000 Visa Bulletin chart which we currently have posted, there is still a waiting list, though the Department of State has commented that the EB2 and EB3 categories -- but not the "other" (unskilled) workers -- may well become current by the middle of 2001. It may take several months for the effect of Sections 104(a) and (b) to be felt, but the intent and eventual effect is to eliminate the waiting list for EB1, EB2, and EB3 employment-based immigrants.

104(c) : Extension of Nonimmigrant Status for Persons Waiting for the Priority Date to Become Current

Section 104(c) is a helpful provision that allows beneficiaries of EB1, EB2, or EB3 I-140s to extend their nonimmigrant status while waiting for their priority dates to become current. The extension would be valid up until the application for adjustment of status (I-485) has been adjudicated. Please note that the November 3, 2000 MurthyBulletin includes an article entitled "ACTA Helps Those Waiting for Priority Dates to Become Current," which also discusses 104(c).

Since 104(c) specifically mentions adjustment of status, this provision does not help persons who opt for consular processing of their Green Cards. It also does not specifically mention H1B, so arguably a person in another non-immigrant status would also be eligible for an extension.

One point that remains unclear is the duration of the extension. There is no specific duration indicated, unlike the one-year increment specified in section 106(b). While 106(b) allows multiple H1B extensions, each in one year increments, 104(c) says that the INS may approve "an extension" (note the use of the singular term) until the I-485 is decided. The section title of 104(c) is "One-Time Protection Under Per Country Ceiling."

The general rule of statutory construction is that the wording of the law always governs and Section titles or the legislative history of a law are to be relied upon only when there is ambiguity in the law itself. Based on the title and the use of the singular "an extension" implies that the beneficiary would obtain one extension that would not have a specific expiration date but would rather be automatically valid until a decision is made on the person's I-485. Does this mean that the INS will approve the H1B extension under Section 106 (c) for the duration of status (D/S) like with the F-1s and J-1s? The issue is not crystal clear under ACTA.

There was also some discussion as to exactly who is eligible for the extension. The language implies that 104(c) helps persons who have their I-140 approved and are waiting for their priority date to become current so they can file their I-485. However, the actual language is as follows: "any alien who -- (1) is the beneficiary of a petition filed" in EB1, EB2, or EB3 "and (2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants…." Clause (1) could have said a petition that was approved, rather than just filed. Therefore there is a possibility that 104(c) can be used by a person whose I-140 is still pending.

Section 105 : H1B Portability

As with 104(c), some questions remain unanswered with regard to section 105. Section 105 states that a person who was previously issued H1B status and who has a new employer file for an H1B can take the new job upon filing the H1B petition, rather than waiting for approval. The basic requirements are that the beneficiary was lawfully admitted to the U.S., the new employer's petition is not frivolous, the petition was filed on a timely basis (prior to expiration date of the person's status), and the beneficiary never worked without authorization.

Section 105 states that it applies to petitions filed before, on, or after the date of enactment of ACTA. One of the panelists wondered if it could be used to "cure" past violations, if in the past a person took up the new job prior to INS approval. There is no clear answer at this point.

Also, though the law says the person must have previously been issued H1B status and must have been lawfully admitted, it does not say the person must be currently in valid H1B status. Many attorney participants were of the opinion that this omission enables section 105 to be used by (a) a person who was lawfully admitted as an H1B but then changed to some other status and now wishes to change back to H1B, or (b) a person who was in H1B status but then lost or quit his/her job, and is now in violation of the status.

Section 106 : Exemption to 6-year H1B Limit, Extension of H1B beyond 6 Years, Job Mobility for I-485 Applicants, and Recapture of Unused Immigrant Visas

106(a) and (b) : Exemption to 6-year H1B Limit and Extension of H1B beyond 6 Years

H1B holders are exempt from the 6-year limitation, and may obtain extensions beyond six years, if (i) they have an I-140 or I-485 pending AND (ii) 365 days have passed since filing of the Labor Certification or the I-140.

As with section 105, does the person have to be currently holding H1B to use 106(a) and (b)? Section 106(a) uses similar language to 105, i.e. a person "previously issued a visa or otherwise provided nonimmigrant status" in the H1B category. So again there is the possibility that a person who previously held H1B but is now in another status could use 106(a) and (b). Yet other language in 106 makes this a somewhat shaky idea. First of all, it refers to the six-year limitation; the 6-year limitation applies only to people currently in H1B or H-4 status. Other statuses have different time limits, which may be shorter or longer. Furthermore, 106(b) says the INS can "extend the stay" of the beneficiary. This language would imply that the person cannot use section 106 to change back to H-1; still, there are people who may wish to try this, knowing that the INS could very well deny their request. It also appears that the language could allow for a person who previously held H1B but now is in another status to extend that other status.

Another interesting note is that, unlike section 104(c), 106(a) and (b) do not specifically mention adjustment of status, but rather state that extensions can be granted until "a final decision is made on the alien's lawful permanent residence." Therefore this provision appears to be usable regardless of whether a person chooses adjustment of status (I-485) or consular processing for the Green Card.

106(c) : Job Mobility for I-485 Applicants

This is the provision on which we at The Law Office of Sheela Murthy have received the most questions, though the H1B portability under section105 is in a close second place. In our article about ACTA in the October 20, 2000 MurthyBulletin, we devoted much discussion to 106(c), advocating a cautious approach, as the law seemed to reduce INS's authority and ability to determine whether a job offer was valid. Therefore, it appeared likely that INS would seek, through the regulations writing process, to narrow the scope of the new law rather than giving up any of the INS turf.

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…." As we indicated in the October 20, 2000 article, this language raises many questions. Will the person have to submit documentation to the INS, such as a letter from the new employer, stating that the work comprises 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?

We also pointed out that, 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. It seemed unlikely to U.S. that these governmental agencies would give up these powers willingly, even if, as many believe, the intent of Congress was to penalize these agencies for their lengthy processing delays.

We concluded in our October 20, 2000 article in the MurthyBulletin that regulations would probably be needed before anyone would know when it would be safe to change jobs while the I-485 was pending. Based upon the November 7, 2000 AILA teleconference, our caution appears to have been justified. INS, in its discussions with AILA attorneys and advocacy staff on the meaning of ACTA, is clearly seeking to limit the applicability of 106(c) as much as it can.

For example, INS officials have argued that 106(c) applies only to future I-485 applications -- those filed after October 17, 2000 -- and not to applications already pending at the time ACTA was signed. Since 106(c) is worded in the past tense, referring to a person whose I-485 "has been filed," it seems illogical to argue that this provision pertains to future cases only. This interpretation is, of course, subject to change, and it is quite possible that INS will change its tentative position on this and other issues.

Again, discussions as to how the new law should be interpreted are going on now. For example, INS originally was saying that the law did not allow for extension of H-4 dependents along with their H1B spouses; they have since retreated from that position and now acknowledge that the H-4s can be extended too.

A note on the regulation writing process may also be helpful for readers of the MurthyBulletin. Much thought and analysis goes on before any regulation is written. Generally a government agency publishes a regulation as a proposal, with time allowed for comments from the public. The agency then considers the comments and decides whether to make changes. In its final regulation, it discusses the various comments received and sets forth the final text of the regulation. Regulations, which have the force of law, are also known as rules.

Sometimes a regulation is challenged in court on the basis that it goes beyond the scope of the law. It is still quite possible that interpretations of the new law will be changed many times before any regulations are written. Also, as can be seen in the above description of the regulatory process, changes are often made between the proposed regulation stage and the final regulation, in response to comments. So it is quite possible that the regulations may be favorable. It is just too early to tell.

106(d) : Recapture of Unused Immigrant Visas

106(d) provides for banking of unused employment-based immigrant visas from FY 1999 and 2000. This reserve can be applied to future years when the demand in EB1, EB2, and EB3 exceeds supply. The reference to "unused" visas refers to the fact that many immigrant visas were lost due to the INS slowdown in adjudication of I-485s during FY 1999 and 2000. Visa numbers are allocated to a particular year, so if they are not issued by the end of that fiscal year, they cannot be recaptured. 106(d) remedies this problem, at least with respect to FY 1999 and 2000. Hopefully the backlog reductions mandated in ACTA and planned at INS will make it less likely that significant numbers of immigrant visas are lost in FY 2001 and future years.

As earlier mentioned, the above detailed analysis of ACTA is our understanding and interpretation by attorneys both from within The Law Office of Sheela Murthy and by other AILA attorneys. Of course, all of the analysis could change when INS issues its regulations or even Memoranda or other guidance clarifying or modifying provisions in ACTA.