H-1B and Related Immigration Legislation


Legislation enacted in October 2000 expanded the annual H-1B quota to 195,000, doubled the H-1B user fee from $500 to $1000, and made other changes significant to employment-based immigration.

Quota.

The H-1B visa category is used to employ foreign workers in specialty occupations which are predominantly degreed professionals such as engineers. The initial quota of 65,000 set in 1990, as well as the quota expanded in 1998 to 115,000, could not meet demand. The H-1B quota for fiscal years 2001 to 2003 has now been expanded to 195,000. Exempt from the quota are H-1Bs working for institutions of higher learning and their affiliated nonprofit and governmental research organizations.

$1000 Fee.

The $500 user fee which must be paid by the employer at the time of filing an H-1B visa petition in addition to the filing fee has been doubled to $1,000.00. This fee must be paid by the employer and cannot be reimbursed by the alien worker. The increased fee will become effective for petitions filed on or after December 17, 2000.

Portability.

H-1B workers may now start working for a new employer upon the filing of the new H-1B petition so long as the petition is non-frivolous and the worker has not been employed without authorization.

Amended Petitions.

Amended H-1B petitions are not required when there has been a corporate restructuring of the petitioning employer, where a new entity succeeds to the interests and obligations of the petitioner, and the terms and conditions of employment remain the same.

Extensions Beyond Six-Years.

If the H-1B worker is a beneficiary of an employment-based petition, but cannot apply for permanent residence because of the lack of a current priority date, the worker can obtain H-1B extensions until adjustment is adjudicated. Beneficiaries of employment based I-140 petitions may apply for H-1B extensions in one-year increments if either the I-140 petition or the underlying application for labor certification has been filed and pending for 365 days.

Per-Country Limitations.

Unused immigrant visas may be made available on a calendar quarterly basis without regard to per-country limitations. It is anticipated this provision will lessen the impact of quota backlog on the immigration of Chinese and Indian professionals.

Portability of Pending Employment Based Immigrants.

Employment-based adjustment applicants may change jobs or employers so long as the I-485 application has been pending for 180 days and the new job is in the same or a similar occupational classification.

H-1B Dependent Employers.

H-1B dependent attestation provisions are extended to October 1, 2003. An employer for the purposes of determining H-1B dependency, is defined as "a single employer" under the Internal Revenue Code provisions governing employee benefit plans which includes all entities in a multi-entity organization. An employer of 51 FTEs whose workforce is 15% H-1Bs, is a dependent employer, with a graduating percentage for smaller employers. H-1B dependent employers must make the following attestations: there has been no displacement of U.S. workers in essentially equivalent jobs by H-1B workers in the employer's workforce or in that of a client employer where the employer places H-1B workers; and the employer has taken good faith steps to recruit U.S. workers. These attestations need not be made for exempt H-1B workers who are workers paid $60,000.00 or more and workers with master's degrees or equivalent in a specialty related to the intended employment. The employer's compliance with the attestation requirements will be enforced through DOL investigation and administrative remedies including back pay.