The new law will allow workers seeking to accept new employment in H-1B status to begin working for the new employer as soon as the new petition is filed.
On October 4, 2000 the House of Representatives overwhelmingly approved S. 2045, the Bill sponsored by Senators Abraham and Hatch, which had breezed through the Senate only one day before. The new bill contains many favorable provisions for companies wishing to employ foreign professionals, such that it won out over the far too restrictive version proposed by Rep. Lamar Smith of Texas. President Clinton is expected to sign the bill into law this week.
The new law increases the number of H-1B visas available to 195,000 for the years 2001, 2002 and 2003. To remedy the problem of the INS’ “overcount” from the last two years, the law automatically raises the FY 1999 and 2000 caps to accommodate any visa numbers over the old limit attributable to Petitions filed during those fiscal years. Therefore, as of October 1, 2000; the start of FY 2001, there are 195,000 H-1B visas available!
Raising the cap is not the only improvement to the system. The new law exempts certain workers from the cap altogether. Persons to be employed on H-1B status for higher educational institutions, affiliated non-profit entities and individuals employed by Governmental and nonprofit research organizations are not counted against the cap. The INS is also not allowed under the law to count against the cap any person who has been in H-1B status within the previous six years.
One of the most important improvements is the “portability provision.” The new law will allow workers seeking to accept new employment in H-1B status to begin working for the new employer as soon as the new petition is filed, and will not require that they wait several weeks for an approval. Additionally, this provision assists beneficiaries of labor certification applications and I-140 Petitions for Immigrant Worker whose applications for adjustment of status are pending in accepting new employment without penalty. If the I-485, adjustment of status application, has been pending more than 180 days, the worker may change jobs without losing the validity of the underlying I-140 or labor certification.
The H-1B debate is over. The new Bill is an acknowledgement that the United States’ economy can only continue to grow if the demand for skilled workers is filled. At this time, foreign talent is necessary to meet this demand. Congress, not blind to the problems of an under-skilled domestic work force, earmarked 55% of the H-1B processing fees for Department of Labor technical skills training programs, 22% for college scholarships, and 15% for K-12 competitive grants in math and science. In short, the new law is a “win, win” situation for business and American workers alike.