U.S. Immigration Update

Congress Provides Visa Solutions for Employers and Employees

Mobility / February 2001
By Scott F. Cooper

On October 17, 2000, President Clinton signed into lay the American Competitiveness in the 21st Century Act (AC21). This legislation probably is the most business-friendly piece of immigration legislation for the employer community since the Immigration Act of 1990

(IMMACT 90)

IMMACT 90 reorganized the system for immigrants coming to the United States and increased the number of employment-based immigrant visas, including more for those occupations deemed to be in short supply. IMMACT 90 also, however, limited new professional worker visas (H-1B visas) to 65,000 annually and limited to six years the amount of time the H-1B visa worker could work in the United States.

AC21 dealt with a number of problems created by increased demand for highly skilled professionals from abroad during the past several years and by government delays in processing of petitions and applications for these workers filed by U.S. employers.

Following are some of the problems and solutions provided by the legislation.

Problem 1. U.S. employers have been finding it increasingly difficult to locate enough skilled U.S. workers in their professions. They seek to hire foreign nationals, some graduating from U.S. universities, others from abroad, but find visas are only available to them for six months out of the year.

Problem 2. An employer seeks to recruit an H-1B worker already in the United States and working for another employer. However, processing times for the petition to allow the worker to change employers takes anywhere from two to six months, effectively rendering the worker unavailable.

Problem 3. Employers face demands from prospective foreign national workers to support the workers in obtaining U.S. permanent residence, often called a "green card." As employers do so, they find that they often cannot promote or change the employee's job substantially for three to six years because the law has required in most cases that the foreign national continue performing the same job duties documented at the beginning ofthe process.

Problem 4. The three- to six-year delay in the green card process may cause an employer to lose an H-1B visa employee's services for a year or more when the six-year maximum length of stay on the worker's status is met before the employee is far enough along in the green card process to gain a provisional work authorization during the last phase. Employers often have had to move the worker to an affiliate office abroad until permanent residence has been granted or a year has elapsed, whichever is shorter.
Problem 1. U.S. employers have been finding it increasingly difficult to locate enough skilled U.S. workers in their professions. They seek to hire foreign nationals, some graduating from U.S. universities, others from abroad, but find visas are only available to them for six months out of the year.

Solution 1. AC21 increased the quota of H-1B visas from the 107,500 for the 2000 federal fiscal year to 195,000 per year for fiscal years 2001 to 2003. Thereafter, the cap returns to the IMMACT 90 quota of 65,000, at a time when many presume that a combination of lessened demand and increased avail- ability of adequately trained U.S. workers will decrease the need for H-1B workers.

Further, petitions for such workers from higher education institutions and their affiliated non-profits, and non-profit or governmental research organizations, and petitions filed on behalf of certain physicians who will practice in health personnel shortage areas are exempted from the cap altogether. Also, the roughly 23,000 petitions that accidentally were approved by the Immigration Service in the last year in excess of the cap are covered.

As a result, the increased quota likely will be sufficient for private industry's needs for the next several years, avoiding the problems created when previous quotas were used halfway through the federal fiscal year. The legislation also clarifies congressional intent as to which cases are to be counted against the quota and which are not.

For example, other than the obvious new II-IF worker petition, petitions for workers who move fkom an exempt employer, such as a university, to a non-exempt employer will then be counted against the cap. Petitions for extensions ofstay, amended work conditions, or changes ofemployer clearly will not count against the cap. If the Immigration Service revokes a petition because they determined it was obtained fraudulently, another quota number is then made available for a new petition.

Relief comes at a cost. Congress also passed another bill that increases the government filing fee for the H- 1B petition. Effective December 17, the fee increased from $610 to $1,110 for petitions for new H1-B workers and for the first extension of H1-B status with the same employer.

If you think, "Wow, INS sure is getting a lot of money to do this," think again. INS' portion of the fee is $110. The balance is a "training fee" that goes into a fund for the training or retraining of U.S. workers with the hope that these workers some day will fill the need that employers are now filling with H-1Bs.

Petitions filed by higher education institutions and their affiliated non-profits, non-profit or governmental research organizations, and elementary and secondary schools, and petitions filed on behalfofcertain physi- cians who will practice in health personnel shortage areas are exempted from the "training fee."

Also gaining exemption are amended petitions filed by other employers to notify INS only ofa change in employment conditions. The $500 fee previously generated more than $250 million in training funds. If employers use all of the 195,000 visas each year over the next three years, that fund could be $750 million.

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Problem 2. An employer seeks to recruit an H-1B worker already in the United States and working for another employer. However, processing times for the petition to allow the worker to change employers takes anywhere from two to six months, effectively rendering the worker unavailable.

Solution 2. AC21 provides that the H-1B worker now may change employers when the new employer files the petition with INS. Given the Department of Labor's current processing time for the first step for an H-1B case, this translates to about a two-week wait for the new employer to employ the worker. This is, of course, a double-edged sword because it allows H-1B employees to be more immediately available to other employers if the H-1B is not happy with the current employer.

Caveat. It is best for the employer to await receipt of the Form I-797 Notice of Action from the Immigration Service documenting the agency's formal acceptance of the new employer's petition. This document is then used with the worker's existing H-1B status documentation to verify employment eligibility no later than three days after the employment begins as required under federal law.

Problem 3. Employers face demands from prospective foreign national workers to support the workers in obtaining U.S. permanent residence, often called a "green card." As employers do so, they find that they often cannot promote or change the employee's job substantially for three to six years because the law has required in most cases that the foreign national continue performing the same job duties documented at the beginning ofthe process.

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Solution 3. AC21 provides that, once the foreign national worker's application for permanent resident status (the last stage of the green card process) has been pending for 180 days, a change of position with the employer is allowed if the worker's new position is in the "same occupation." For example, a mechanical engineer that is promoted to an engineering manager generally would be considered in the same occupation.

Caveat. The law also provides that the foreign national does not have to remain with the same employer. Therefore, foreign national workers who are not happy at their current place ofemployment could switch employers after the 180-day waiting period.

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Problem 4. The three- to six-year delay in the green card process may cause an employer to lose an H-1B visa employee's services for a year or more when the six-year maximum length of stay on the worker's status is met before the employee is far enough along in the green card process to gain a provisional work authorization during the last phase. Employers often have had to move the worker to an affiliate office abroad until permanent residence has been granted or a year has elapsed, whichever is shorter.

Solution 4. AC21 again helps here. If the company has obtained a labor certification approval and filed an immigrant petition for the worker, and 365 days have elapsed since hiring the labor certification, the H-1B worker's status can be extended in one-year increments beyond the normal six-year limit. This applies until residence is granted or a provisional work authorization is granted to the worker in the last stage of the permanent residence process.

AC21 provides relief in two forms with respect to those individuals who are unable to get their green cards because of backlogs in the green card quotas for those born in certain countries. First, AC21 allows an individual on whose behalf an employment-based immigrant petition is approved, annual quota (most of the world) can be used to reduce the backlog in visas for those from countries that have regularly used up their quota (India, China, Mexico, and the Philippines). Not stopping at that point, Congress mandated that the leftover employment-based green cards from the last fiscal year (which were not used because of government processing delays) can be used in the current fiscal year. This means many extra tens of thousands of visas will be available along with the 140,000 allocated for this year.

Congress also set "processing goals" (as opposed to requirements) for INS of 30 days for nonimmigrant petitions (such as for H-1B or L-1 workers) and 180 days on all other applications and petitions (such as for permanent residence or citizenship).

This is all well and good except there as yet is no extra money for INS to reduce the backlog. INS has a couple of times brought its processing of cases to a virtual standstill for one to two weeks just to count how many cases it has pending so it can tell Congress how much money and how many people it needs to meet those goals. Do not hold your breath.

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