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H-1B & L-1

(For L-1, Go To L-1 Page)

 The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.

Important Reminder: Effective 03/30/00, New I-129W filing is "Mandatory" for H-1B Filing!!

Nationwide LCA Fax-Back Number: 800-397-0478

Index

* L-1A Blanket Processing Guidelines (Go to L-1 Page)

* New LCA Form and Procedure

* AILA Summary of DOL H-1B Regulation

* DOL H-1B (ACWIA) Regulation of 12/20/2000

* INS I-129W Preparation Guide (Click here)

* INS Official Interpretation (Q&A) of AC21

* $1000 H-1B Charge Waiver Entities Summary & Full Text

* DOS Reading of AC 21 Law

* INS Business Reading of AC 21 Law

* President Statement of Signing S. 2045 Bill

* Matthew Oh, Esq. Reflects on S. 2045

* S. 2045 Detailed Analysis

* GAO Report of H-1B Statistics

* INS H-1B Statistics

* S.2045 H-1B Bill Summary

* S.2045 H-1B Bill Full Text

* INS EAD/AP Memo for EB-485 Travellers

* NIV Application Procedure in Canada/Mexico

* TCN NIV Processing in Ciudad Juarez

*H/L Visa Revalidation in DOS

* Automatic Revalidation of NIV to Return from Canada/Mexico

* 1998 H-1B Law Change and Follow-Up (1) (2) (3)

* H-1B Applicants Statistics by Occupation

* Top H-1B Employers

* New LCA Form and Procedures Effective 12/20/2000

New Form ETA 9035

New Procedures:

To send by Facsimile

To send by Mail

* AILA Summary of DOL H-1B Regulation

Part I (Rules Applicable to Both H-1B Dependent and Non-Dependent Employers)

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

SUMMARY OF DEPARTMENT OF LABOR’S
12/20/00 INTERIM FINAL H-1B REGULATION

 

NOTE: The regulation is extensive, complex and highly detailed. This summary touches on only some of the issues raised by the regulation-there are many other items that are not covered here. In any event, this summary cannot substitute for the attorney’s own review and analysis of the regulation. It is strictly an attempt to highlight a handful of the changes initiated by the regulation.

· Filing the LCA. A new, 3-page form is included in the regulation. The form can be filed via faxback system using an “800” telephone number, or can be submitted by mail to the Philadelphia DOL Regional Office post office box (no private carriers). Individual regions will no longer process LCAs. If the form is mailed in, it will be scanned into the faxback system. There will be a transitional period, from January 19, 2001 until February 5, 2001, during which the faxback system will not be useable, and LCAs can be submitted only by mailing the new form to the Philadelphia address. However, after January 19, 2001, only the new three-page form published with the regulation will be accepted. The new form removes the actual text of the attestation elements to a new “cover page” which does not need to be submitted to DOL, but must be included in the public access file, be part of any posting of the form (electronic or hard copy) and be provided to the H-1B employee. The form will be available for download (along with a form filler program) from DOL’s website at http://ows.doleta.gov.

· H-1B portability. The regulation indicates that AC21’s H-1B portability provision cannot be used until a petition is filed with INS that is supported by a certified LCA.

· Corporate reorganizations. As long as the conditions specified by the DOL are met, no new LCA will need to be filed to continue employment of existing H-1B employees when there is a corporate reorganization. However, the new entity will be required to maintain a list of the H-1B employees transferred to it, and to maintain in the public access file a list of the affected LCA numbers and their dates of certification, a description of the new entity’s actual wage system, the EIN of the new entity, and a sworn statement from an authorized representative of the new entity expressly assuming the liabilities and obligations of the existing LCAs and containing certain specified language (including, according to the preamble, assumption of liability for any violations by the previous entity under the LCA). According to the regulation, the new entity “shall not” employ any of the predecessor’s H-1B employees unless either this statement is executed and placed in the public access file or new LCAs and petitions are filed. Successors will not be able to use existing LCAs of the predecessor company to file new petitions or extend existing petitions. If the restructuring results in a change in the company’s dependency status, there will be no effect on the employer’s obligations with respect to existing H-1B employees, but any new H-1B hire or extensions of status for existing H-1Bs would be subject to whatever rules would now apply to the company (dependent or non-dependent.)

· Traveling employees. A multi-tiered inquiry is involved in determining what, under the regulations, needs to be done when H-1B employees travel. The first tier involves the question of whether the travel needs to be of concern at all. Essentially, if the employee’s travel does NOT involve going to a new “place of employment” or “worksite,” one need not be concerned with any special traveling employee rules. The regulation includes a new, detailed definition of “place of employment.” It is not a “place of employment” if the “nature and duration” of the employee’s job functions necessitate frequent changes of location with little time at any one place. To meet this criterion, the job (as opposed to the employer’s business) must be peripatetic in nature, the duties must require that most work time be spent at one location but occasional travel for short periods is needed to other locations, AND the travel must be on “a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).”

Examples cited that could meet these criteria for not being a new place of employment include computer engineers who troubleshoot at customer sites; physical therapists making home visits “within an area of employment;” or sales representatives making customer calls. Examples of those not meeting these criteria, and therefore going to “places of employment,” include computer engineers who work on projects for weeks or months at a time; physical therapists who “fill in” for other therapists for extended periods or who are placed by contractor companies; or a sales representative who is assigned on a continuing basis to a location away from the home office. It is also not a “place of employment” if the H-1B employee is temporarily at a different location for developmental activity (seminars, etc.), unless he or she is an instructor or a member of support staff who “continuously or regularly” performs duties at such locations. There is no time limit for attendance at a different location for developmental activity according to the preamble.

Where the person travels to a location that does not constitute a new “place of employment,” under these rules, then the LCA obligations are tied to the regular work location. Employers are required to reimburse for travel expenses during such travel.

If, however, the travel constitutes going to a new “place of employment,” a second tier of inquiry is necessary. If the travel is within the same area of intended employment, Section 655.734 requires that notices be posted at new worksites within that area on or before the date that the H-1B employee reports to that site. If the travel is outside the area of intended employment shown on the LCA, the new Section 655.735 is invoked. In essence that section requires that either a new LCA must be filed before the travel can take place, or detailed “short-term placement” rules must be followed. Those rules limit short-term placements to 30 workdays at any worksite not listed on the LCA in any given fiscal or calendar year. However, a short-term placement can be for up to 60 workdays in a one-year period if the H-1B employee continues to maintain a work station at the “permanent” worksite and spends a substantial amount of there during the year, and if the employee’s place of abode is in the area of the permanent worksite. The regulation prohibits employers from making the employee’s initial assignment at a short-term placement location. It also prohibits use of the short-term placement rules in any area of employment where the employer has a certified LCA for that occupational classification. In that case, the employer must apply the conditions of that LCA (wage rate, strike or lockout) to the new H-1B employee. The preamble states that if the employer’s LCA has open “slots”, nothing more must be done. However, if the employer moves more H-1B employees into the area than it has available “slots,” DOL states in the preamble that it expects the employer will take steps to correct the situation by filing new LCAs. In an enforcement context, DOL may, “in its discretion, overlook ‘overcrowding’ of the LCA, if it is not substantial.”

Employers choosing to use the short-term placement rule (rather than filing a new LCA) for areas where they do not already have an LCA must continue to pay the required wage based on the permanent worksite, and must pay the employee’s actual cost of travel, lodging, meals and incidentals for workdays and non-workdays at the short-term site. The employer is not required to meet GSA per diem schedules, but, according to the preamble, in an enforcement proceeding if the employer cannot document the actual expenses, DOL will use the GSA schedules to determine appropriate reimbursement.

Once the workday limit is reached at a location, the employer must either file an LCA for that site (the language of the regulation is vague as to whether the LCA must be certified at the time the limit is reached) or remove the employee. If any employee exceeds the time limit, or the employer in any other way “violates the terms of” the LCA, and the short-term placement option cannot thereafter be used by that employer for any H-1B employees in that occupational classification in that area of employment. Employers also are “cautioned” against continuously rotating H-1B nonimmigrants to an area of employment “in a manner that would defeat the purpose of the short-term placement option.”

· Prevailing wage-Service Contract Act wages. For purposes of SCA wage determinations, it is irrelevant whether the worker is employed on an SCA-subject contract, and whether the worker would be exempt from the SCA under the “professional employee” exemption test. Also, if an SCA wage determination for a computer professional states a rate of $27.63 per hour, that rate may not be used (due, according to the regulation, to a quirk in the SCA system). This provision appears to be effective immediately (the regulation indicates that Section 655.731(a)(2) is effective immediately, but there are two subparagraphs with that same number. The other subparagraph (a)(2)-relating to prevailing wages for institutions of higher education and others-most likely is the one intended to be effective immediately, but DOL may have meant to also make this subparagraph effective immediately).

· Prevailing and actual wage when a new prevailing wage is obtained. The regulation indicates that the prevailing wage as to any particular H-1B employee is governed by the LCA that supports that individual’s petition, and that prevailing wage determinations on later LCAs for the same occupation do not operate as an “update” of the prevailing wage of earlier LCAs. However, the regulation seems to indicate that, because the DOL views actual wage as a “dynamic” matter, an increase in pay for new employees because of an increase in the prevailing wage could cause the actual wage to also rise and create an obligation to increase the wages of the H-1B employees under old LCAs.

· Actual Wage Documentation. The Interim Final Rule also drops the entire Appendix A from the Notice of Proposed Rulemaking (“NPRM”), which contained DOL’s “guidance” regarding documentation of the actual wage. The requirement from the NPRM that employers must have an objective wage system “sufficiently detailed to enable a third party to apply the system to arrive at the actual wage rate computed by the employer for any H-1B nonimmigrant” has been deleted. In the preamble to this Interim Final Rule, DOL states that the system does not have to be “objective” but must only use “legitimate business factors.” DOL is “persuaded that some subjective factors, such as an evaluation of performance levels,” may be legitimate. Also, the documentation must only be detailed enough that a third party can “understand how the employer applied its pay system to arrive at the actual wage for its H-1B nonimmigrant(s).” The preamble also states that the description in the public access file should, at a minimum, contain the business-related factors that are used in setting wages and the manner in which they are implemented (e.g., the wage/salary range for the position and the pay differentials for various factors such as education and job experience).

· Prevailing wage for employees in higher education or Governmental or nonprofit research organizations. In this notice, the DOL amends the regulations on this subject for both LCAs and the permanent labor certification process. To qualify to use the separate prevailing wage categories for this grouping, institutions of higher education must be accredited or pre-accredited. Governmental research organizations, which must be U.S. government entities, and nonprofit research entities must have a primary mission of performance or promotion of basic or applied research, which can include sciences, social sciences or humanities. This provision is effective immediately, and is retroactive as to prevailing wage determinations “that were not final as of October 21, 1998.”

· Benefits. ACWIA requires that benefits be offered to H-1B nonimmigrants on the same basis, and in accordance with the same criteria, as they are offered to the employer’s U.S. workers. The regulation defines this to mean that H-1Bs must be offered the same benefit package as U.S. workers, cannot be subjected to stricter eligibility criteria, and cannot be treated as “temporary employees” for benefits purposes by virtue of their nonimmigrant status. The benefits received by the H-1B employee do not have to be identical to those received by U.S. workers, as long as the same benefits package was offered and the H-1B voluntarily chose different benefits (and the employee actually receives the benefits elected). Multinational companies can keep transferred employees on the foreign payroll and offer “home country” benefits under certain circumstances.

The regulations require that employers retain, as documentation of the benefits attestation, a copy of benefit plan descriptions provided to employees, a copy of the benefit plans themselves and any rules used for differentiating benefits among groups of employees, evidence as to what benefits are actually provided to U.S. workers and H-1B nonimmigrants, and the benefit elections made by those employees. If the employer is a multinational employer providing “home country” benefits, evidence of the benefits provided to the H-1B nonimmigrant before and after the move to the U.S. also must be maintained.

For violations of this provision, the DOL gives itself authority in Section 655.810 to assess payment of “back…fringe benefits.” The preamble discusses the DOL view that certain benefits “are in the nature of compensation for services rendered” and have a monetary value (such as paid vacations and holidays, bonuses and termination pay, which are taxable to the employee when earned, and health, life and disability insurance, deferred compensation such as retirement plans and stock options funded by employers). The preamble also states DOL’s view that these items are more “in the nature of wages than working conditions” and the department will enforce violations of these under the wage.

· Benching. If an H-1B employee is in a nonproductive status due to a “decision by the employer,” which includes lack of work assignments and lack of a permit or license, the employee must nevertheless be paid the full pro-rata amount due. Part time employees in nonproductive status must be paid at least the number of hours indicated on the petition. If a range of hours is indicated on the petition, then the employee must be paid for the average number of hours he or she ordinarily works. The preamble indicates that if an employee regularly works more than the designated number of part-time hours stated on the petition, DOL might charge the employer with misrepresentation.

If the nonproductive period is due to “conditions unrelated to employment” at the employee’s “voluntary request and convenience” (such as caring for a sick relative or touring the U.S.) or due to circumstances like maternity leave that render the employee unable to work, the employer is not obligated to pay the employee, provided the period is not subject to pay under the employer’s benefit plan or under other statutes. The preamble makes clear that DOL cannot “forgive” employers from compliance with this rule due to annual plant shutdowns or holidays or other events that affect both U.S. workers and H-1B nonimmigrants. However, DOL indicates its view that laying off U.S. workers in such situations while retaining H-1B nonimmigrants may violate other nondiscrimination laws. Such an action would also be a violation of the ACWIA layoff attestation for H-1B dependent employers, in the DOL’s view.

These obligations begin once the H-1B employee “enters into employment,” which is deemed to occur when the individual first makes him or herself available. The regulation indicates that “even if the nonimmigrant has not yet ‘entered into employment’,” once the petition is approved, the required wage must start to be paid 30 days after the nonimmigrant is first admitted to the U.S., or if he or she is already here, 60 days after the nonimmigrant first becomes eligible to work for the employer. The latter is deemed to be the later of the start date set forth on the petition or the date INS renders a status decision. Payment obligation ends if there has been a “bona fide” termination of the employment relationship. While the language of the regulation itself is less than clear on this point, the preamble indicates that a “bona fide” termination will be deemed to have occurred only when the employer notifies the INS of the termination, the H-1B petition is canceled, and the return fare obligation is fulfilled.

· Attorney’s fees. The effect of this regulation is to make it a violation of the required wage provisions if the H-1B employee pays “attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer (e.g., preparation and filing of LCA and H-1B petition)” such that, when deducted from the employee’s wage, the wage would be below the higher of the actual or the prevailing wage. (If such payments would not reduce the employee’s wage beneath the required wage, such payments are permissible.) The regulation at Section 655.731(c)(9)(iii)(C) terms the deduction of such fees and costs from the employee’s wages as a “recoupment of the employer’s business expense,” and then at Section 655.731(c)(12) deems the act of “imposing on the employee” such an expense to be an unauthorized deduction from wages. These provisions were included in the NPRM’s Appendix B, which has now been eliminated, and are now incorporated in the actual regulatory text.

· The “no penalty” penalty. ACWIA prohibits the requirement of payment of a penalty for the H-1B employee ceasing employment prior to an agreed date, except that the employer may receive liquidated damages in such a case. The interim regulation does not contain the requirement that was in the proposed regulation that a court order would be necessary for a repayment to constitute liquidated damages, instead defining liquidated damages by reference to state law. However, the regulation indicates that liquidated damages cannot be collected by deduction from the employee’s paycheck. The preamble states that recoupment of attorneys fees may be included in liquidated damages. In any event, the regulation indicates that the $1,000 “training” fee could never be a part of liquidated damages and cannot be recouped in any form.

· Notice requirement. The regulation reinstates the requirement, struck down by the NAM lawsuit, that notices must be posted at new worksites within the area of intended employment on or before the date that the H-1B employee reports to that site. It also explicitly requires postings not only in the employer’s own facility, but at third party worksites. Electronic notice is allowed, either by a one-time direct notice (such as email) to employees in the occupational classification at the place of employment or by making the notice available for 10 days by electronic means such as a company intranet or bulletin board.

· Complaints by non-aggrieved parties. For the first time, ACWIA authorized the DOL to conduct investigations, under certain specified circumstances, based on information received from persons who would not be considered aggrieved parties. The regulation sets forth a process for receiving such information, which the DOL will then review to determine whether the source is likely to possess relevant knowledge, whether the information provided is specific and credible and provides reasonable cause to believe that the employer has committed a violation, and whether the alleged violation is willful, involves a pattern or practice, or involves substantial violations affecting multiple employees. The regulation specifies that “information” does not include information from DOL employees unless obtained in the course of a lawful investigation. In the preamble, DOL provides a lengthy discussion of its belief that this new authority does not in any way diminish its ability to conduct “directed” investigations without a complaint. However, the preamble also states that during the period when this new “other source” investigative authority is in place, it intends to investigate only under a complaint from an aggrieved party (including information obtained during an investigation under the INA or any other law) and random investigations of willful violators (as authorized by ACWIA).

· New violations and penalties; investigations. The regulation creates a new rule by which a violation of other rules that “impedes” the ability of the DOL to investigate or the ability of members of the public to obtain information needed to file a complaint can make an employer subject to a $1,000 civil penalty. The preamble indicates this penalty will apply for violations preventing public access or record-keeping violations. The preamble also contains a lengthy discussion of DOL’s interpretation that it has the authority to order “make whole relief” including reinstatement of dismissed employees, as part of its “administrative remedies.” DOL also gives itself the authority to interview complainants and extend the 30-day period for investigations if due to reasons “outside of the control” of DOL and additional time is necessary to obtain information from the employer or other sources.

· Key dates. Unless otherwise noted, the provisions of this regulation are effective January 19, 2000. Comments are due February 20, 2001, except for comments on a new proposed form for collecting information to determine if a violation has been committed. Comments on that form are due January 19, 2001.

Part II: H-1B Dependent Employers Only

DEFINING H-1B DEPENDENT EMPLOYERS

What are the proportions of H-1B employees to overall workforce that constitute H-1B dependency? Under ACWIA, an employer is H-1B dependent if it has in the U.S.: (a) 25 or fewer full-time equivalent (“FTE”) employees and more than 7 H-1B employees; (b) between 26 and 50 FTE employees and more than 12 H-1B employees; or (c) at least 51 FTE employees and a number of H-1B employees equal to at least 15% of the employer’s FTE employees. In counting the number of FTE employees for this purpose, H-1B employees are included.

What is the formula for determining if an employer is H-1B dependent? The DOL views the formula as requiring a comparison of two dissimilar numbers: an actual head count of H-1B employees, without regard to full or part-time status, and a computation of the employer’s FTE employees. If the ratio of H-1B employees to the total workforce is “obvious and can easily be compared to the definition of ‘H-1B dependency’,” the employer’s status as dependent or non-dependent need not be calculated. If the employer’s dependency status is “borderline”—i.e., not readily apparent—the employer can use a “snap shot test” to determine if calculation of the status is necessary. Employers of 51 or more persons would divide the number of H-1B employees by the number of full-time employees. (It would not be necessary to perform the FTE calculation for part-time workers described below.) If this “snap shot” results in a ratio of less than 15%, the employer is not dependent and no further calculations are necessary. If the “snap shot” gives a result of 15% or more, and the employer believes it is actually non-dependent, then it must calculate the FTEs of its part-time workforce as described below. Smaller employers (50 or fewer full and part time employees) may compare a head count of their workforces to the definition of H-1B employer for this “snap shot” test.

What is a full-time equivalent employee? Under the IFR, an FTE employee is either one who actually works full time, i.e., at least 40 hours per week unless the employer can show that a lesser number of hours are considered full-time in its regular course of business. Under the DOL regulation, full-time can never be less than 35 hours per week. The IFR offers two options for calculating how many part-time employees equal an FTE: 1) count each part-time worker as ½ of an FTE for the calculation, thus requiring no records of actual hours worked and no complex calculations; or 2) total the hours worked by all part-time workers in the pay period and divide that total by the employer’s standard hours for full-time employment (at least 35 hours per week), based on the last payroll or, where records of hours of work are not maintained, a reasonable approximation of the hours worked, such as a standard work schedule.

Who is counted as an employee in calculating dependency? Bona fide independent contractors and consultants are not counted as employees. The DOL will accept the employer’s designations of who are “employees,” provided they are consistently treated as employees for all purposes, including FICA and FLSA. The count of employees should be based on the most recent records of the employer before filing the LCA.

Who is the employer? The Interim Final Rule (IFR) provides that entities considered a “single employer” under the Internal Revenue Code Sections 414(b), (c), (m), or (o) must combine their employees for determining their dependency calculation. In general, those sections include: 1) “controlled groups of corporations,” such as a parent-subsidiary controlled group, a brother-sister-controlled group, or a combined group; 2) “trades or businesses under common control” which can include sole proprietorships, partnerships, estates, trusts, and corporations; or 3) “affiliated service groups,” such as a service organization (health care organization, law firm, accounting firm) and other organizations that regularly perform services for the first organization and either are shareholders or partners in the first organization or the interest in the second organization is held by highly-paid employees of the first organization. At present, the Treasury Department has no regulations governing employee-leasing situations and thus such situations are not covered in this regulation. If, however, the Treasury Department issues regulations on the subject in the future, members of employee leasing groups might be treated as a single employer. This “single employer” definition is only to be used in dependency calculation, and not in any other element of H-1B LCA filing or enforcement.

When must the calculation of H-1B dependency be made? Employers must determine their dependency status each time an LCA (existing or new) is used to support an H-1B petition (for new employment or an extension of employment). The LCA filed in support of that petition must accurately state the employer’s dependent or non-dependent status. Stating that DOL “disagrees” with the argument that invalidating existing, valid LCAs for H-1B dependent employers is retroactive rule-making, the IFR requires that employers wishing to file petitions for new H-1B employees or to extend the status of existing H-1B employees must determine their dependency status. If they are H-1B dependent, they must file a new LCA indicating that status to support those petitions, and may not use existing, certified LCAs, even if they are still valid and have open “slots” on them. Those LCAs are still valid for existing H-1B employees, and the employer need not comply with the new attestation requirements for those employees, until they wish to file for extensions of status for those employees. An employer undergoing a corporate reorganization must also recheck its dependency status before filing new LCAs for future petitions (see the summary of provisions of general applicability for the regulations regarding the need for documentation in a corporate restructuring situation).

What records need to be kept of the dependency determination? The IFR does not require any documentation of the employer’s determination if its “snap shot” makes its dependency status readily apparent, either dependent or non-dependent. However, if the employer’s snapshot is over 15% and it makes a further calculation that it is non-dependent, the employer must retain a copy of the full computation. If an employer’s status changes from dependent to non-dependent, the employer must keep a copy of the full calculation used to make this determination. If an employer uses the IRS “single employer” test to determine dependency, it must keep records of which entities are included in the definition of single employer as well as the computation performed (either the snapshot or full calculation). Also, if any employees are included in the calculation that are not on the employer’s normal payroll, the employer must have documentation to substantiate that the workers are indeed employees. None of this documentation must be kept in the public access file, but must be made available to DOL in an investigation.

What indication of the employer’s status is included on the LCA? The new LCA form will have three options for the employer to check: 1) the employer is non-dependent; 2) the employer is dependent but the only H-1Bs to be sponsored under this LCA are “exempt” H-1Bs (see below); or 3) the employer is dependent, the employees are non-exempt, and the employer will comply with the additional attestations. According to the regulation, the LCA cannot be used for new H-1B nonimmigrants or extensions of H-1B status if an employer’s dependency status changes from that indicated on the form (either to dependent or non-dependent). Likewise, if the LCA indicates it will be used only for exempt H-1B nonimmigrants, it may not be used to support petitions for non-exempt H-1Bs. Dependent employers must file separate LCAs for exempt and nonexempt H-1Bs even in the same occupation.

WILLFUL VIOLATORS

What constitutes a “Willful violator” for purposes of the additional attestations and random investigations authorized under ACWIA? Under the regulation, any employer who is found to have committed a willful failure to meet a condition of the LCA or a misrepresentation of a material fact on the LCA, is required to make additional attestations for H-1B dependent employers and be subject to random DOL investigations during the five year period following the date of the final determination of such violation (on or after October 21, 1998) either in a DOL proceeding (relating to LCA compliance) or in a Department of Justice proceeding (relating to failing to offer employment to U.S. workers under the recruitment attestation). The section of the preamble discussing the random audits states that the date of the “finding” of willful violation or misrepresentation occurs when the administrative review process is completed, as described in Section 655.855(b) of the regulations (which would be the date on which the final administrative appeal is exhausted and a finding is issued).

EXEMPT H-1B NONIMMIGRANTS

What are “Exempt H-1B Nonimmigrants” generally? Under the statute, “exempt H-1B nonimmigrants” (for whom an H-1B dependent employer is not obliged to meet the additional attestation elements) are those holding a master’s or higher degree or its equivalent in a specialty related to the intended employment, or who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000.

Who will make the determination whether a nonimmigrant is “exempt”? The IFR states DOL’s “understanding” that INS will examine the exempt status of any nonimmigrant whose petition is supported by an LCA that indicates it is to be used only for exempt nonimmigrants. This examination will be based on the wage level indicated for the individual on the LCA and the petition, or, if this wage level is not adequate to support an exempt status, whether the individual’s educational level qualifies for exempt status. If the INS’ initial determination is that the individual is not exempt, then INS will, according to the preamble to the DOL regulation, issue a Request for Evidence seeking a new LCA or documentation of the individual’s exempt status. DOL will, in an investigation, determine whether an individual actually received the required wage rate. If the wage rate is not adequate, then DOL will examine the educational level of the individual (including whether the field of study is relevant). However, under the terms of the IFR, the DOL will treat as conclusive INS’ determinations of exempt status based on educational attainments, unless the INS determination was based on false information.

What documentation of the “exempt” status must be kept? DOL will not require that individual petitions be kept in the public access file, but the employer must keep them in case of a DOL investigation. However, the public access file must include a list of the names of H-1B employees whose petitions are supported by any LCA indicating that it will be used only for exempt nonimmigrants, unless the employer does not employ any non-exempt H-1B employees, in which case a simple statement to that effect must be included in the public access file.

How is the $60,000 annual rate determined? The regulation indicates that the “cash in hand, free and clear” standard applicable to satisfaction of the prevailing and actual wage requirement also applies to the question of whether the full $60,000 annual rate was actually paid. Under the regulation, part-time workers may not meet this requirement unless they actually receive $60,000 for their part-time work (i.e., the $60,000 cannot be prorated for part-time employees). Employees who have worked less than a full year will retain their exempt status if they received at least the pro rata share of the $60,000 annual requirement for the period.

How is the “equivalent” of a degree determined? DOL rejects the use of work experience equivalency for this standard, and instead requires the individual to have the actual degree or its foreign equivalent. With regard to determining equivalence of foreign degrees, the IFR requires that the degree be from an institution recognized or accredited by the law of the country, and specifies that where an employer attests that an H-1B nonimmigrant is exempt based on education, rather than wages, the employer must provide, at the request of either INS or DOL, copies of the degree and transcripts of courses taken and grades earned. DOL also is proposing (for comment, but not as part of the IFR) to include the guidelines published by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) regarding equivalency of foreign degrees as part of the Final Rule for use in determining whether a foreign degree is equivalent to a U.S. master’s degree. As an alternative, DOL proposes that employers would be able to present evidence from a credential evaluation service if there were no foreign degree listed as equivalent or where a degree was awarded in the past and circumstances have changed. The DOL regulation does not address how INS might evaluate degree equivalency for these purposes.

What is “a specialty related to the intended employment”? The IFR adopts a standard that in order to be considered “relevant” the degree must be “generally accepted in the industry or occupation as an appropriate or necessary skill or credential.” In order to determine whether a credential meets this standard, the DOL, in the preamble, indicates its intention to use the Occupational Outlook Handbook and O*NET as guides. The preamble also suggests that DOL may examine other evidence of industry standards in an investigation. DOL also seeks comment on whether or not to specifically cite the OOH and O*NET as primary sources for determining whether a degree is in a specialty related to the occupation in the Final Rule and proposes that where neither of the two primary sources recognizes the credential, then the employer may submit a report from a credentialing organization that the degree is recognized in the industry as an appropriate and necessary skill.

DISPLACEMENT ATTESTATION

Which employees are protected from displacement? The statute provides that “employees of the employer” and “employees of the other employer” in contractor situations (“secondary displacement”) are protected from displacement by H-1B nonimmigrants. The IFR uses a “common law” test to determine whether an individual is an “employee” of either the principal employer or the other employer. However, the IFR does not include a detailed list of factors that determine common law employment, as was proposed in the NPRM. The preamble reiterates that the common law test requires an assessment of all of the factors of the employment, but also states that the right to control the means and manner of work will be a key determinant, with no single factor controlling. The preamble does not suggest any particular test, but does state that an employer’s designation of a worker’s status for tax purposes is not controlling as to the matter of that worker’s status for purposes of the H-1B program. The preamble also emphasizes that the common law test is not only for use in the displacement context, but for any area in the H-1B program in which the question of an employment relationship may arise. However, the IFR does state that the employer of any H-1B nonimmigrant is, by definition, the petitioning entity.

The employee must also be in an “essentially equivalent job” to that held by the H-1B nonimmigrant. The IFR indicates that the comparison will be one-to-one where appropriate between the displaced worker and the H-1B nonimmigrant, but may be broader “where appropriate,” such as in cases where a department is eliminated and then the function staffed with H-1B nonimmigrants. The comparison will be based on the job responsibilities, focusing on the core elements of and competencies for the job, the qualifications and experience of the workers in question, which must be substantially equivalent (the IFR indicates that 10 years of experience would be “substantially equivalent” to 15 years of experience and that degrees from any accredited university would be “substantially equivalent” regardless of the stature of the institution). The comparison also must be for positions that are in the same area of employment, i.e. the area within normal commuting distance of the worksite.

What circumstances does the “secondary displacement” prohibition cover? The secondary displacement prohibition controls when an H-1B employer places the nonimmigrant at a worksite operated or owned by another employer where there are “indicia of employment” between the H-1B professional and the other employer. DOL notes that such “indicia” do not have to meet the definition of “employed by the employer” (based on the common law test), but the IFR includes a list of relevant indicia to include:

The other employer has the right to control when, where and how the nonimmigrant performs the job (the presence of this indicator would suggest that the relationship “approaches” the relationship that triggers the secondary displacement provision);

The other employer provides tools, materials and equipment;

The work is performed on the premises of the other employer (this alone would not trigger the secondary displacement provision);

There is a continuing relationship between the nonimmigrant and the other employer;

The other employer has the right to assign additional projects to the nonimmigrant;

The other employer sets the hours of work and the duration of the job;

The work performed by the nonimmigrant is part of the regular business of the other employer;

The other employer is itself in business; and

The other employer can discharge the nonimmigrant from providing services.

What is considered an impermissible layoff vs. a permissible termination for determining “displacement”? The IFR clarifies that an employer may terminate an employee for inadequate performance, violation of workplace rules, or other cause related to the worker’s performance or behavior on the job. The worker may also voluntarily depart or retire (although DOL will assess whether “constructive discharge” may have taken place in this circumstance). In cases where the U.S. worker is discharged because of the expiration of a grant or contract, where such expiration essentially ends the need or funding for the job, DOL will not consider it to be a lay off, but will examine closely to determine whether or not the employer usually moves employees to a new contract or project when such expirations occur. The preamble states that in situations where an employer normally lays off U.S. workers when alternative work is not available and then rehires them when it is, DOL will expect the employer to first contact the laid off U.S. worker before hiring an H-1B nonimmigrant. An employer may also offer a U.S. worker who loses employment an alternative job offer that is a “similar employment opportunity” at equivalent or higher compensation. The alternative offer does not need to be in the same area of employment, but in a case where the job location is different, DOL will assess cost of living differentials and payment of moving expenses in determining whether the offer is at “equivalent or higher compensation.” The comparison of the job opportunities will also include comparison of compensation and benefits, levels of authority, discretion and responsibility, opportunity for advancement and tenure and work scheduling.

What inquiry/documentation is needed for a secondary placement situation? The placing employer is required to exercise “due diligence” in enquiring of the other employer as to displacement of U.S. workers during the relevant period (90 days before and after placement of the H-1B nonimmigrant at the worksite). The LCA and the IFR make clear that making this inquiry will not protect a placing employer from sanctions if the secondary employer does, in fact, displace a U.S. worker within the relevant period. However, unless the employer knew or had reason to know of the displacement, the employer would be subject only to monetary penalties, and not to debarment. The other employer has no liability in such situations. The IFR suggests that the placing employer may accomplish this inquiry in several ways, including securing written assurance from the other employer regarding displacements, preparing a written memorandum of an oral statement of the other employer, or including a secondary displacement clause in the contract with the other employer. The IFR also states that the employer may be required, in the exercise of due diligence, to make further inquiries when it has other information which indicates that U.S. workers might have been or will be displaced (examples include where the employer is taking over a function of the other employer that was formerly conducted by its own employees, or following news reports of layoffs by the other employer) if the information is available before the placement of the H-1B nonimmigrant.

What documentation is required to support the direct displacement attestation? The employer is required to retain (not create) all records that it makes or receives concerning the circumstances under which each U.S. worker in the same locality and occupation as the H-1B nonimmigrant left the employer’s employ during the relevant period (90 days before and after the petition filing) and any such U.S. worker was terminated by the employer’s action. The documentation should contain the following: name, last-known mailing address, occupational title and job description, any documentation concerning the employee’s experience and qualifications and principal assignments. All documentation prepared by the employer relating to the departure of such employees, including any offers of alternative employment, notification of termination and any responses thereto, must be retained as well. These records are not required to be in the public access file, just available to DOL upon request.

RECRUITMENT ATTESTATION

What are the standards for recruitment? The employer is required to engage in “good faith recruitment” using “industry-wide standards.” The IFR states that the employer is not required to utilize any particular number or type of recruitment, but must use strategies that have been successfully used by other employers in the industry to recruit U.S. workers. An employer may not use the “least common denominator” of methods that are unsuccessful at recruiting U.S. workers, even if such methods are common. An employer must, at a minimum, recruit both internally and externally and use both active and passive methods. Examples of active methods include attending job fairs, using college placement services or headhunters, and internal employee training. Examples of passive methods include print or Internet advertisement and internal job postings. The language of the regulation appears to require that at least some recruiting must target former employees.

The employer has the burden of proving, in an enforcement action, that its recruitment met “industry-wide standards,” such as trade organization surveys, studies by consultative groups or reports/statements from trade organizations. Staffing firms must meet the standards of the industry in which they are placing employees, i.e. health care staffing firms must meet the standards of the health care industry, and technology-staffing firms must meet the standards of the information technology industry generally. The preamble also makes clear that an employer may advertise for multiple similar positions, and such recruitment may be acceptable if it accords with “relevant industry standards” applicable to that employer. The preamble also cautions employers that disproportionate use of certain recruitment methods, such as college campus recruiting, may have the unintended consequence of discriminating against older workers.

The employer’s recruitment must also be in “good faith.” DOL determines that this means that U.S. workers must be given an equal and fair opportunity to obtain the position. An employer must not skew the recruitment process against U.S. workers or in favor of H-1B nonimmigrants. Specifically, the IFR states that an employer may not give preference to its current nonimmigrant workers who do not yet have H-1B status (such as students on practical training). DOL also states that it would look with disfavor upon any practice that screens the applications of H-1B nonimmigrants or prospective H-1B nonimmigrants differently than U.S. workers.

The preamble notes that DOL has rejected its presumption that successful recruitment of U.S. workers would necessarily meet its good faith recruitment standard, since the perception that a negative presumption would attach to unsuccessful recruitment was evidenced from the comments. However, the preamble also notes that in its enforcement, DOL will look closely at the recruitment efforts of employers who have not been successful in hiring U.S. workers. Employers may not apply otherwise-legitimate selection criteria in a way that skews the recruitment process in favor of H-1B nonimmigrants, nor may they apply their screening criteria in a discriminatory manner. Such violations would evidence the employer has failed to recruit in “good faith.”

What are the standards for selection? The employer must offer the job to any equally or better qualified U.S. worker who applies. The employer may use any “legitimate selection criteria relevant to the job that are normal and customary to the type of job. While the Department of Justice has jurisdiction over claims from U.S. workers who allege they were not offered the job but were equally or better qualified, DOL asserts its authority to determine whether or not legitimate selection criteria were used. The IFR indicates that each criterion must meet three standards: 1) legitimate, meaning legally cognizable and not violating any applicable laws, 2) relevant to the job, meaning having a nexus to the job and its duties and responsibilities, and 3) normal and customary to the type of job, meaning necessary and appropriate based on the practice or expectations of the industry, rather than the preferences of the particular employer. The preamble indicates that DOL will look to the Occupational Outlook Handbook and O*NET as guidelines for what constitute acceptable criteria that are normal and customary for the job, and that those resources will be used as a tool in DOL enforcement. However, DOL acknowledges that these sources would not be definitive. DOL also cautions against recruitment practices and selection criteria that have the effect of discriminating against U.S. workers generally or against groups of workers, such as older workers and minorities.

What documentation is the employer required to maintain with regard to its recruitment? The employer must make and maintain documentation of the recruiting methods used, including the places and dates of any advertisements, postings or other methods used, the content of the advertisements or postings, and the compensation terms, if such are not included in the advertisements or postings. The documentation may be in any form, including a summary memorandum to the file. The employer must keep any documentation it has received or prepared concerning the treatment of applicants for the position, such as copies of applications and related documents, test papers, rating forms, records of interviews, and records of job offers and responses. The preamble emphasizes that DOL is not requiring that the employer create any documents relating to the treatment of applicants, but it must keep any documents it does create or receive. A summary of the recruitment methods used and periods for recruitment must be in the public access file. All other documentation must be made available to DOL upon investigation and request.

KEY DATES

Key dates. Unless otherwise noted, the provisions of this regulation are effective January 19, 2000. Comments are due February 20, 2001, except for comments on a new proposed form for collecting information to determine if a violation has been committed. Comments on that form are due January 19, 2001
(Courtesy of AILA)

* DOL H-1B ACWIA Regulation (12/20/2000) Full Text in PDF or Non-PDF or ESA Site

* INS Official Interpretation of AC 21

November 21, 2000

Changes to the H-1B Program

On October 17 and 30, 2000, President Clinton signed into law several bills which significantly change the H-1B program as well as the employment based immigration program. Prominent among these bills is the American Competitiveness in the Twenty-First Century Act (AC21).

Q1: How does AC21 affect the H-1B cap?

A1: Section 214(g) of the Immigration and Nationality Act (Act) sets an annual limit on the number of aliens that can receive H-1B status in a fiscal year. For FY2000 the limit was set at 115,000. AC21 increases the annual limit to 195,000 for 2001, 2002 and 2003. After that date the cap reverts back to 65,000.

Q2: Are there new exemptions to the H-1B cap?

A2: Yes. In addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:

• Institutions of higher education;

• Related or affiliated nonprofit entity, or

• Nonprofit or government research organization.

AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption.

In addition, the FY 2001 cap does not include H-1B petitions filed after INS reached the FY 2000 cap on March 22, 2000 but before September 1, 2000. INS estimates that approximately 30,000 petitions were filed during that time frame.

Q3: How does INS plan to adjust its current counting method so that any petitions filed prior to September 1, 2000 will not count against the FY 2001 cap?

A3: The Service already electronically captures the date a petition was received by INS. Therefore, our ability to electronically separate cases file before 09/01/00 is already in place.

Q4: What steps has INS taken to improve its counting to ensure that multiple beneficiaries are only counted once as required by the new law?

A4: The Service has conducted sweeps of the H-1B data to identify multiple beneficiaries to ensure that they are counted toward the cap only once in past fiscal years. We will continue with that process insuring that we conduct the sweep on using H-1B data for the past six years.

Q5: The bill requires that INS may not count someone toward the cap if they have had H-1B status in the prior 6 years, unless the individual would be authorized for a new 6-year period of stay. How is INS going to implement this? How does this differ from INS’ current counting methodology?

A5: INS is revising its regulations to explain when an H-1B worker is eligible for a new 6-year period of stay.

System changes will be made in order to allow the Adjudicator to indicate whether an individual who was previously H-1B is now eligible for a new 6-year period of stay. This indicator will enable the Service to properly count an individual toward the cap in these circumstances.

Upon approval of the petition, the program will compute the number of H1B visas issued according to the factors as defined by statute.

Q6: The legislation states that the limit for FY 99 is increased by "a number equal to the number of aliens issued such a visa or provided such as status" from the time the limit was reached and September 30, 1999. Is INS interpreting this clause to deal solely with the discovered overage or does INS intend to recapture any visas it issued before September 30, 1999 but had given FY 2000 start dates?

A6: The Service interprets this language as forgiveness for the number of H-1B petitions approved in excess of the FY99 cap due to counting errors. It is not our intent to recapture numbers for cases approved in FY00 toward the FY00 cap.

Q7: When does the law take effect?

A7: Almost all of the provisions of AC21 and the related legislation are effective immediately upon enactment. The law was officially enacted on October 18, 2000. The sole exception is the increase in H-1B petitioner fee from $500 to $1000, which takes effect on December 17, 60 days after enactment.

Q8: Are there new exemptions from the ACWIA (now $1,000) fee?

A8: Yes. Employers now exempt from paying the fee include:

• Institutions of higher education and related or affiliated non-profit organizations;

• Non-profit or governmental research organizations;

• Any employer who is filing for a second extension of stay for an H-1B nonimmigrant;

• Primary or secondary education institutions; or

• Nonprofit entity engaged in "established curriculum-related clinical training of students".

Although the fee increase does not take effect for 60 days, the new exemptions from the fee are effective immediately. Thus the new exempt organizations are exempt as of October 18, 2000. INS is working to change its forms and systems to accommodate this change but this will take time. In the meantime, petitioners claiming to be exempt should submit a copy of the relevant provision of AC21 with their petition along with evidence that they qualify as an exempt organization. Petitioners should also note on Form I-129W the basis for the exemption, notwithstanding the fact that the form will not initially contain the necessary boxes to check for these new exemptions.

Q9: Are there any new filing exemptions?

A9: Yes. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

Q10: Who is eligible to use the H1B "portability" provisions?

A10: The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an
H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment, so all aliens who meet this definition can begin using the portability provisions.

Q11: Are there any other limitations on the portability provisions?

A11: An alien must have been lawfully admitted into the United States. The new employer must have filed a "non-frivolous" petition while the alien was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. INS plans to further define this in its implementing regulations. Subsequent to such lawful admission, the alien must not have been employed without authorization.

Q12: How will employers who hire H-1B aliens using the portability provisions comply with their I-9 requirements?

A12: Current regulations at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the alien's I-94 to the I-9 kept on file.

Q13: When will the Implementing regulation be published?

A13: INS is currently drafting the regulation. Because of the new $1,000 fee increase, it is possible that in addition to the normal DOJ and OMB review, this regulation will have to undergo the additional review required by the Small Business Regulatory Enforcement Fairness Act of 1996. If this is the case it is unlikely that the regulation will be published before March 2001. INS is exploring ways to expedite publication of the regulation.

Q14: What benefits are available under AC21 to aliens with Immigrant petitions/adjustment applications?

A14: First, § 104 of AC21 lifts the per-country limits on employment-based immigrant visa numbers if the total number of visas available during a calendar quarter exceeds the number used. The Department of State is charged with issuance of these visas and maintenance of priority dates and availability. This issue will not be addressed in INS regulations.

Where the country caps delay an alien's immigration notwithstanding this provision, AC21 also provides for an extension of H-1B status until the alien's adjustment of status application can be processed and a decision made.

Finally, AC21 gives extensions of H-1B status in one-year increments to H-1B aliens who have an employment-based immigrant visa petition or application for adjustment of status pending if It has been more than 365 days since the visa petition or the labor certification application has been filed. Note that the adjustment application, labor certification, or visa petition need not necessarily have been pending for a year to obtain this benefit. The only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition.

Q15: Will H-4 dependents of H-1B nonimmigrants be able to receive these extensions?

A15: The AC21 does not address this issue but speaks only of aliens issued a visa or otherwise provided nonimmigrant status under the H-1B provisions of the Act. INS is studying this issue, which will be addressed in the implementing regulations currently under development.

Q16: How will employers demonstrate I-9 compliance for H-1B aliens granted extensions beyond the six-year period in INA 214(g)(4)?

A16: Current regulations at 8 C.F.R. 274A.12(b)(20) authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this involves attaching a copy of the receipt notice for the extension along with a copy of the alien's I-94 to the I-9 kept on file.

Q17: The law requires that any visas revoked due to fraud are recaptured and restored to the total available for the current fiscal year. How does INS intend to do this?

A17: INS already has the ability to electronically identify those cases that are revoked due to fraud as opposed to those that are revoked for other reasons. Therefore, this should not be an issue.

Q18: The law mandates INS processing times of 180 days. Given the current budget situation does INS feel that it can realistically meet this goal?

A18: The new law does not mandate any processing times. It does, however, indicate that it is the sense of Congress that adjustment applications should be completed in no more than 180 days and nonimmigrant petitions should be processed in no more than 30 days. This sense of Congress is followed by recognition that INS is in need of appropriations for infrastructure and other improvements. INS will in the process of collecting data in an attempt to comply with the reporting requirements necessary to be eligible for consideration of appropriations that may be granted to aide in the reduction of processing times. There is no guarantee that Congress will appropriate funds for the improvements necessary to reduce backlogs and improve processing time within the Service even if INS complies with all of the reporting requirements set forth in the statute.

Q19: Given the large increase in the volume of applications, does INS feel that it can maintain its current processing goals of 60 days for H-1B petitions and 90 days for I-140 petitions given that Congress has only earmarked 4 percent of the new H-1B fee for INS processing?

A19: The Service will do its best to maintain current processing times. Much of our ability to maintain the processing times will be a result of the budget that is passed and our ability to direct overtime funds to the offices that will be impacted by the increased filings. Although we have been authorized to hire individuals into term positions to deal with the increased filings, the hiring and training process are lengthy and the true benefits of the hiring will not be realized for several months.

– INS –
For the INS release, click here.

 



* $1000 H-1B Charge Waiver Entities

Employers that are exempt from $1000 payment are:
(1) a primary or secondary education institution,
(2)an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a),
(3)a nonprofit entity related to or affiliated with any such institution,
(4)a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution,
(5)a nonprofit research organization, or
(6)a governmental research organization
For other employers, the fee of $1000 will be imposed beginning from 12/17/00 until October 1, 2003. The current $500 fee provision was expected to expire in October 2001. Therefore unless this new law is extended by the Congress before October 2003, it will sunset on October 1, 2003.

* Full Text of Fee Waiver Entities Legislation

H.R.5362--

H.R.5362

 

One Hundred Sixth Congress

of the

United States of America

AT THE SECOND SESSION
Begun and held at the City of Washington on Monday,

the twenty-fourth day of January, two thousand

An Act

To increase the amount of fees charged to employers who are petitioners for the employment of H-1B non-immigrant workers, and for other purposes.

 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. AUTHORITIES RELATING TO THE IMPOSITION OF FEES.

Section 214(c)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(9)) is amended--

(1) in subparagraph (A), by striking `(excluding' and all that follows through `2001)' and inserting `(excluding any employer that is a primary or secondary education institution, an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a), a nonprofit entity related to or affiliated with any such institution, a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, a nonprofit research organization, or a governmental research organization) filing before October 1, 2003'; and

(2) in subparagraph (B), by striking `$500' and inserting `$1,000'.

SEC. 2. EFFECTIVE DATE.

The amendment made by section 1(2) shall apply only to petitions that are filed on or after the date that is 2 months after the date of the enactment of this Act.
Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

END

 

* DOS AC 21 Cable to Posts (DOS Reading of AC 21)

A NEW H1-B LAW: THE AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT OF 2000

1. ON OCTOBER 17TH, THE PRESIDENT SIGNED HR 2045, A BILL TO AMEND THE IMMIGRATION AND NATIONALITY ACT WITH RESPECT TO H-1B NONIMMIGRANT ALIENS. TITLE I OF THIS LAW IS KNOWN AS THE "AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT OF 2000" AND CONTAINS NUMEROUS AMENDMENTS TO THE INA WITH REGARDS TO H-1B AND EMPLOYMENT-BASED IMMIGRANT VISAS.

THEFOLLOWING IS A SUMMARY OF THE KEY CONSULAR-RELATED CHANGES CONTAINED IN THE ACT.

CHANGES TO THE H-1B ANNUAL LIMIT

---------------------------------

2. SECTION 102 OF THE ACT RAISES THE ANNUAL CAP FOR H-LBS FOR FISCAL YEARS 2001, 2002, AND 2003 TO 195,000 PER YEAR. THE ACT RETROACTIVELY RAISES THE FY99 ANNUAL CAP TO THE NUMBER OF ALIENS WHO WERE ACTUALLY GRANTED H-1B STATUS DURING THAT YEAR AND RETROACTIVELY RAISES THE FY2000 ANNUAL CAP TO THE NUMBER OF ALIENS WHO WERE, OR MAY BE, ISSUED VISAS OR OTHERWISE GRANTED STATUS BASED ON PETITIONS FILED BEFORE SEPTEMBER 1ST, 2000. THIS LATTER PROVISION MEANS THE FY2001 COUNTER WAS EFFECTIVELY RESET TO ZERO ON AUGUST 31TH OF THIS YEAR. THE LARGE NUMBER OF H-1B PETITIONS THAT HAD BEEN APPROVED DURING THE SUMMER FOR FY2001 EMPLOYMENT (AND COUNTED AGAINST THE FY2001 CAP) WILL NOW BE CHARGED AGAINST THE FY2000 CAP.

 

CERTAIN H-1B PETITIONS EXEMPT FROM THE ANNUAL LIMIT

----------------------------------------------------

3. SECTION 103 EXEMPTS FROM THE ANNUAL CAP H-1B ALIENS WHO ARE EMPLOYED (OR OFFERED EMPLOYMENT) AT (A) AN INSTITUTION OF HIGHER EDUCATION OR A RELATED OR AFFILIATED NONPROFIT ENTITY; OR (B) A NONPROFIT RESEARCH ORGANIZATION OR A GOVERNMENTAL RESEARCH ORGANIZATION. HOWEVER, IF THE ALIEN LEAVES THE EXEMPTED EMPLOYMENT AND OBTAINS EMPLOYMENT WITH A NON-EXEMPT EMPLOYER, THE ALIEN MUST BE COUNTED AT THAT TIME. SECTION 114 ALSO EXEMPTS H-1B ALIENS FROM THE ANNUAL CAP WHO ARE SUBJECT TO 212(E) AND WHO HAVE BEEN GRANTED A WAIVER OF THE TWO-YEAR FOREIGN RESIDENCE UNDER INA '214(SMALL L) (1)(B). CONGRESS ALSO SOUGHT TO ENSURE THAT AN ALIEN IS ONLY COUNTED ONCE, EVEN IF HE OR SHE IS THE BENEFICIARY OF MULTIPLE H-1B PETITIONS. SECTION 103 THEREFORE ALSO EXEMPTS AN H-1B ALIEN FROM THE ANNUAL CAP IF THAT ALIEN HAS ALREADY BEEN COUNTED AGAINST THE CAP WITHIN THE LAST SIX YEARS. (IF THE ALIEN WOULD BE ELIGIBLE FOR THE FULL SIX YEARS OF AUTHORIZED ADMISSION AT THE TIME THE PETITION IS FILED, HOWEVER, THE ALIEN WILL BE COUNTED AGAINST THE CAP.)

 

GREATER AVAILABILITY OF EMPLOYMENT-BASED IMMIGRANT VISAS

---------------------------------------------------------

4. IN FISCAL YEARS 1999 AND 2000, DUE IN PART TO THE PER-COUNTRY LIMITS AND INS BACKLOGS, THE ANNUAL LIMIT FOR EMPLOYMENT-BASED IMMIGRANT VISAS WAS NOT REACHED DESPITE A LARGE APPARENT DEMAND. THE ACT MAKES THREE CHANGES TO ATTEMPT TO RECTIFY THE SITUATION WITH REGARD TO PER COUNTRY LIMITS. FIRST, SECTION 106 RECAPTURES THOSE EMPLOYMENT-BASED VISA NUMBERS WHICH WERE AVAILABLE BUT NOT USED IN FISCAL YEARS 1999 AND 2000 AND MAKES THEM AVAILABLE TO E1, E2, E3, AND EW APPLICANTS BEGINNING IN FY-2001.

5. SECOND, SECTION 104 REMOVES THE PER-COUNTRY LIMIT IN INSTANCES WHERE THE OVERALL APPLICATIONS FOR EMPLOYMENT- BASED VISAS ARE LESS THAN THE NUMBERS AVAILABLE WITHOUT REGARD TO THOSE LIMITS. VO/F/I WILL BE REQUIRED TO COMPARE THE OVERALL DEMAND TO THE AVAILABLE NUMBERS ON A QUARTERLY BASIS. IF THE TOTAL NUMBER OF AVAILABLE EMPLOYMENT-BASED VISAS IS GREATER THAN THE NUMBER OF QUALIFIED APPLICANTS WHO MAY OTHERWISE BE ISSUED SUCH VISAS (DURING THE SAME PERIOD), THE PER-COUNTRY LIMITATIONS ON EMPLOYMENT-BASED IV WILL BE LIFTED FOR THE REMAINDER OF THAT QUARTER.

6. FINALLY, SECTION 104 ALSO PROVIDES THAT AN H-1B ALIEN WHO HAS APPLIED FOR AND WHO IS OTHERWISE ELIGIBLE FOR ADJUSTMENT OF STATUS BUT FOR THE PER-COUNTRY LIMITS, MAY OBTAIN AN EXTENSION OF STATUS WITHOUT REGARD TO THE SIX- YEAR LIMIT, UNTIL A DETERMINATION IS MADE IN HIS OR HER ADJUSTMENT CASE.

"PORTABILITY" OF H1-B STATUS

-----------------------------

7. SECTION 105 INCREASES THE ABILITY OF AN H-1B APPLICANT TO CHANGE JOBS WHILE IN THE U.S. IF AN H1-B ALIEN

. HAS BEEN LAWFULLY ADMITTED TO THE U.S.,

. IS THE BENEFICIARY OF A NON-FRIVOLOUS PETITION FOR NEW

EMPLOYMENT FILED BEFORE THE EXPIRATION OF HIS/HER

AUTHORIZED PERIOD OF STAY; AND

. HAS NOT BEEN EMPLOYED IN THE U.S. WITHOUT

AUTHORIZATION SUBSEQUENT TO HIS/HER LAWFUL ADMISSION

BUT BEFORE THE FILING OF SUCH PETITION,

THEN THAT ALIEN IS AUTHORIZED TO ACCEPT NEW H1-B EMPLOYMENT WITH A NEW EMPLOYER FROM THE TIME THAT EMPLOYER FILES A PETITION UNTIL THE PETITION IS ADJUDICATED. IF THE NEW PETITION IS DENIED, SUCH AUTHORIZATION SHALL CEASE.

 

EXTENDING AUTHORIZED STAY AND EMPLOYMENT FLEXIBILITY IN CASES OF LENGTHY ADJUDICATIONS

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8. ALTHOUGH ALIENS GENERALLY MAY REMAIN IN H-1B STATUS FOR NO MORE THAN SIX YEARS, SECTION 106 ALLOWS INS TO EXTEND AN ALIEN'S H-1B STATUS BEYOND SIX YEARS IN CERTAIN CIRCUMSTANCES. INS MAY EXTEND H-1B STATUS IN ONE-YEAR INCREMENTS FOR ANY H-1B ALIEN WHO HAS EITHER AN EMPLOYMENT-BASED IMMIGRATION PETITION OR APPLICATION FOR ADJUSTMENT OF STATUS PENDING AND MORE THAN 365 DAYS HAVE PASSED SINCE EITHER THE LABOR CERTIFICATION APPLICATION (IF APPLICABLE) OR THE PETITION WAS FILED. EXTENSIONS MAY CONTINUE UNTIL THE ALIEN'S PETITION IS DENIED OR THE ALIEN'S ADJUSTMENT IS ADJUDICATED.

9. SECTION 106 FURTHER PROVIDES THAT AN ALIEN WHOSE APPLICATION FOR ADJUSTMENT OF STATUS HAS REMAINED UNADJUDICATED FOR 180 DAYS OR MORE MAY CHANGE EMPLOYERS WITHIN THE SAME OR SIMILAR OCCUPATIONAL CLASSIFICATION WITHOUT HAVING TO OBTAIN APPROVAL OF A NEW PETITION.

EXTENSION OF CERTAIN REQUIREMENTS AND AUTHORITIES

--------------------------------------------------

10. SECTION 10 EXTENDS UNTIL OCTOBER 1, 2003 THE REQUIREMENT THAT H-1B DEPENDENT EMPLOYERS ATTEST THAT THE HIRING OF AN H-1B ALIEN HAS NOT AND WILL NOT WITHIN THE 90 DAY PERIOD PRIOR TO AND THE 90 DAY PERIOD AFTER THE FILING OF AN H-1B PETITION RESULT IN THE DISPLACEMENT OF A U.S. WORKER. IT ALSO EXTENDS UNTIL THE SAME DATE CERTAIN INVESTIGATIVE AUTHORITY IN H-1B MATTERS GIVEN TO THE SECRETARY OF LABOR. BOTH OF THESE PROVISIONS WERE ENACTED IN THE AMERICAN COMPETITIVE WORKFORCE IMPROVEMENT ACT (ACWIA) OF 1998.

 

RECOVERY OF VISAS USED FRAUDULENTLY

-------------------------------------

11. SECTION 108 PROVIDES FOR THE RECOVERY OF AN H-1B NUMBER WHEN AN APPROVED H-1B PETITION IS DETERMINED BY INS TO HAVE BEEN OBTAINED THROUGH FRAUD. THE NUMBER WILL BE APPLIED TO THE NUMERICAL LIMIT FOR THE FISCAL YEAR IN WHICH THE PETITION IS REVOKED.

ALBRIGHT

(Courtesy of AILA)

* INS Reading of AC 21 (S.2045) Law As Reflected in 11/00 Flier for Employers

(Caveat: Please do not take this information as law or formal interpretation of the new law by the INS. People should never act solely in reliance on this Bulletin. They should seek legal counsel on the new law. This website will not be responsible for such reliance.)

Employer Information Bulletin 99-07 H-1B Specialty Workers (11/00)
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UNITED STATES DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
Office of Business Liaison

Public inquiries: Employer hotline 800-357-2099 Fax 202-305-2523 E-mail office.business.liaison@usdoj.gov
Public information: Fax-on-demand 202-514-2033 Order INS Forms 800-870-3676 Website www.usdoj.gov/ins/
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ATTENTION! New law regarding H-1b employment effective October 17, 2000 (See outline of these and other provisions effective 10/30 and 12/18 on last page of this revised employer bulletin.)


H-1B SPECIALTY WORKERS
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Step 1: Labor Condition Application (LCA) Deciding agency: DOL
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Attestation
Employer applicants must list number of workers sought as well as their occupational classification(s), wage rates, and working conditions. Employers must attest that:
· Prevailing wage rate for area of employment will be paid.
· Working conditions of H-1b employee will not adversely affect similarly employed American workers.
· Place of employment is not experiencing a labor dispute involving a strike or lockout.
· Notice of LCA filing is posted in place of employment or is given to employee bargaining representative.
Procedures/conditions
· Employer applicants file Form ETA 9035 with DOL regional office serving area where specialty worker will be employed.
· DOL reviews LCA for completeness and certifies within 7-day period , returning copy to employer.
· LCA is valid for 3-year initial H-1b admission period (or any lesser period requested by petitioning employer) provided there are no material changes in position, work location, or employer.
· LCA must be used by employer within 6 months of intended employment date.
· LCA may cover multiple workers in the same occupation.
· Special restrictions apply for positions that require employees to work in more than one location.
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Step 2: Petition (Form I-129) Deciding agency: INS
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Petition
· Employer petitioner files Form I-129 , plus H Supplement and fee , at INS Service Center nearest to place of employment, including certified LCA and letter of support from employer/petitioner. If the beneficiary is present in the US under another nonimmigrant classification, the same Form I-129 is also used to request change of status for the beneficiary from the current classification to H-1b.
· New! All H-1B petitions must include the Revised Version of Form I-129W (H-1B Data Collection and Filing Fee Exemption Form), providing information INS needs to comply with statistical and reporting requirements. The form will still be used to substantiate exemption of eligible petitioners from the special H-1b filing fee.
· If petition is approvable and H-1b numbers are available for employment beginning when requested by the petitioner , INS mails approval to employer petitioner on Notice of Action Form I-797B. A replacement Form I-94, indicating new H-1b approval dates, is attached in tear-off form to the Notice of Action.
· If H-1b petition is denied, it is appealable to INS' Administrative Appeals Office.
· Change of status inside the US is an alternative to consular processing. Regarding H-1b beneficiaries waiting for H-1b approval outside the US, Service Centers notify the consulates and/or instruct beneficiaries to bring Form I-797 approval notice and copy of H-1b petition to the consulate to support application for an H-1b visa.
Terms and conditions of H-1b classification
· H-1b employment is temporary. The maximum allowable continuous period of H-1b employment is 6 years.
· A combination of education, training, and work experience may substitute for a bachelor's degree. In such cases, three years of specialized training and/or experience can substitute for one year of college study.
· H-1b foreign specialty workers are entitled to have "dual intent," i.e. they are not presumed to be intending immigrants, not required to maintain foreign residence, and are entitled to engage in temporary approved employment while pursuing permanent residence in the US.
· For a petition to be approved, the type of position offered to the H-1b beneficiary must commonly require H-1b level credentials within the employer's trade or industry.
· There is an annual cap on new H-1b approvals of 195,000 workers.
· The annual cap does not apply to H-1b petitions for extension of stay or change of employer.
· Work authorization for H-1b foreign specialty workers is employer-specific (limited to employer/petitioner).
· If more than one employer will employ an H-1b nonimmigrant (i.e. the H-1b nonimmigrant will have two or more part-time H-1b positions), each employer must file a separate LCA and Form I-129.
· H-1b employers must pay return transportation costs for employees terminated prior to end of approved period.
· Employers must notify INS when H-1b workers are terminated so that INS may recapture those H-1b numbers for use by the beneficiaries of other H-1b petitions for new employment.
· H-1b dependents may not be employed under H-4 classification.
Duration of stay
Approved H-1b nonimmigrants are initially admitted for the approved period or a maximum of 3 years. Extension(s) of stay may be approved up to a maximum cumulative period of 6 years (see FN 14). In order to be readmitted as a specialty worker after working in the US under the H-1b classification for the maximum period of time, the alien worker must remain outside the US for at least one year and the employer must file a new petition.
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Step 3: Consular visa (alternative to change of status in the US) Deciding entity: US Consulate
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Procedure
o Employee files Form OF-156 plus I-797B tear-off at US Consulate abroad (Canadians exempt).
o Visa allows alien to board a common carrier and apply for admission to US under classification indicated on visa.
Terms and conditions
Visa issuance is subject to consular discretion. In H-1b cases, consular officers review whether the intended US activities are consistent with the H-1b classification. If they are or become aware that representations made in INS petitions are questionable or inaccurate, they may deny visas. For H-1b aliens, who are permitted under law to have dual intent, consular officers will not require proof of unabandoned foreign residence or intent to return to the home country. The duration of a visa generally depends upon reciprocity between the US and the home country and may provide for single or multiple entry into the US. Note that visas are typically valid for the period of time indicated on the petition approval notice. Where extension of stay is sought and granted, a new visa is needed.
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OTHER H-1B ISSUES
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AMENDMENT OF H-1b PETITIONS (See also legislative changes below, effective 10/30/00)
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CAUTION! Letters, policy memoranda, e-mail and phone conversations do not carry the force of law.
Change of Employer Name and/or Ownership Structure
INS' Aleinikoff policy memorandum (8-22-96) states that "changes in the ownership structure of the petitioning entity generally do not require the filing of a new or amended [H-1b] petition if the petitioning entity continues to remain the alien beneficiary's employer, provided the new owner(s) of the firm assumes the previous owner's duties and liabilities..." This has been interpreted by INS to apply to acquisition of discrete functional components or divisions of companies. See also important changes below effective in 10/30/00 Visa Waiver Program.
Transfers of H-1b employees
INS' Hogan policy memorandum (10-22-92), requiring amendment of H-1b petitions when an H-1b employee is transferred, is affected by the 10-17-00 legislation (see below). Transferred H-1b employees may now move immediately. If the new firm has common hiring/firing authority with the approved petitioner (i.e. a branch), amendment of the H-1b petition is unnecessary as long as the change in geographic location does not necessitate a new LCA. If the subsequent employer is a different employer, the new firm must merely have filed a new or amended LCA and/or petition, as applicable.
Mergers
The Hogan policy memorandum provides that when an H-1b beneficiary's employer merges with another firm to create a third entity that will employ the beneficiary, a new or amended petition must be filed because the merger has created a new legal entity. See changes below effective in 10/30/00 Visa Waiver Program legislation.
Change in Specialty Occupation
When an H-1b employee changes specialty occupation , an amended petition (with a new LCA) must be filed.
--------------------
UNLAWFUL PRESENCE
--------------------
Nonimmigrant employees can suffer serious consequences from lapses or breaches of status. In the event of an overstay, the H-1b consular visa is automatically canceled, meaning that in most cases an alien who needs to travel will have to return to the home country to obtain a new consular visa before re-entering the US. As of the date of overstay, the alien will also begin to accrue time in unlawful presence. Unlawful presence also begins to accrue when an immigration judge makes a determination of breach of H-1b status or where an INS adjudicator denies extension of stay, change of status, or change of H-1b employment because of a lapse of status. If 180 days of unlawful presence accrue, the alien becomes inadmissible to the US for 3 years. If 360 or more days of unlawful presence accrue, he or she becomes inadmissible to the US for 10 years.

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HOW H-1b PETITIONS WERE PROCESSED VIS A VIS THE FY 2000 H-1B CAP
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· FY 2000 petitions for first-time employment of H-1B workers received before March 21, 2000 were not returned. Some of these petitions were approved, if complete, in receipt order, until the FY2000 numbers were exhausted. Filed petitions that remained after FY2000 numbers were exhausted were adjudicated and, if approvable, approved effective October 1, 2000, when H-1B numbers for FY 2001 became available.
· FY 2000 petitions for first-time employment of H-1B workers received on or after March 21, 2000, were returned along with the accompanying fees to petitioners. Petitioners could resubmit their petitions at any time and request employment beginning on or after October 1, 2000.
· Petitioners whose petitions were accepted could choose to withdraw those petitions at any time by submitting a written request containing the receipt number of the H-1b petition, the name of the employer, and the name of the alien beneficiary. The associated fees in these cases were forfeited. Withdrawal requests were to be faxed to the Immigration Services Division, Attention: H-1B Withdrawal, FAX (202) 514-2093.
· As of April 1, 2000, H-1b petitions requesting first-time employment of H-1b workers beginning on or after October 1, 2000 (FY 2001) were accepted and processed in receipt order against the 107,500 cap for FY 2001.
· Effect of reaching the FY2000 cap on continuing H-1b employment: INS continued to process petitions filed for current H-1b workers who remained in valid H-1b status. Under law in effect prior to October 17, 2000, H-1b petitions naming beneficiaries whose H-1b status had lapsed required new H-1b numbers and were subject to the cap. Petitions for extension of current H-1b employment, amendment of terms and conditions of approved H-1b employment, change of H-1b employment, and concurrent H-1b employment were not subject to the cap.
· Effect of reaching the cap on foreign students and exchange visitors named as beneficiaries in H-1b petitions: As provided in the Federal Register, duration of status (D/S) for certain F-1 and J-1 classification foreign students and exchange visitors was extended. As had been the case in fiscal year 1999 when the H-1b cap was reached, any F-1 or J-1 alien whose employer timely filed an H-1b petition prior to commencement of the next fiscal year was permitted to remain in the US until INS adjudicated the related petition. Students in this situation whose work authorization had otherwise expired were not permitted to work or engage in other activity that would violate F or J immigration status during this period.

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ATTENTION! Changes to the law affecting H-1b employment
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1. American Competitiveness in the 21st Century Act (Public Law 106-313), effective October 17, 2000
· Annual H-1b cap was raised to 195,000 through fiscal year ending September 30, 2003.
· H-1b petitions filed before September 1, 2000, and subsequently approved, were exempted from the new FY2001 H-1b cap (they are counted under the FY2000 cap).
· Petitions filed by higher education institutions (or related or affiliated nonprofit entity) and nonprofit or governmental research organizations are exempt from both the annual H-1b quota and special H-1b fee.
· Petitions naming beneficiaries who are foreign physicians under J-1 classification whose 2-year foreign residence requirement has been waived are exempt from the annual H-1b cap.
· Aliens who are approved for H-1b employment with exempt organizations and subsequently change employment to non-exempt organizations will become subject to the annual H-1b quota in the year that the non-exempt employment commences.
· Any alien counted within the H-1b cap within 6 years prior to submission of a non-exempt H-1b petition will not be counted again (or limited by the annual quota) against the annual cap unless the alien would be eligible for another full 6 years of H-1b employment at the time the petition is filed.
· Where multiple petitions naming the same H-1b beneficiary are approved, the alien will be counted only once against the annual H-1b cap (this already was INS practice).
· Employment-based immigrant visas that are not issued within a given calendar quarter will be issued in subsequent quarters without regard to per country quotas.
· The combined employment-based preference categories, during a given calendar quarter, will be issued without regard to the restriction that no more than 28.6% of the worldwide number of employment-based immigrant visas be issued to aliens approved under the 2nd preference category (aliens with exceptional ability or advanced degrees).
· Any alien approved for permanent residence under the 1st, 2nd, or 3rd preference category, but ineligible to adjust status due to per country limits, may extend nonimmigrant status for the period of time necessary for the adjustment to be processed (extension valid for duration of processing period).
· An alien previously issued an H-1b visa and/or granted H-1b status, who has maintained status and not worked without authorization since his/her last lawful admission, may accept new employment provided that the new employer has filed a non-frivolous petition naming that alien as beneficiary. This applies to petitions filed both before and after enactment
· Adjustment applicants whose applications have been pending for over 180 days may change positions within the same company or change employers without invalidating the underlying I-140 petition, provided that the new employment is within the same or similar occupational classification.
· Employment-based immigrant visas unused in FY99-00 are available in subsequent fiscal years
· H-1b aliens named as beneficiaries in filed I-140 petitions, whose labor certifications have been pending for 365 days or longer, may extend H-1b status past the maximum of 6 years, one year at a time, until they adjust status or obtain an immigrant visa
· Provisions enacted in the American Competitiveness and Worksite Improvement Act of 1998 with regard to dependent H-1b employers will remain in effect through fiscal year 2003
· Where H-1b petitions are revoked due to fraud or misrepresentation, H-1b visa numbers will be correspondingly restored to the annual H-1b cap for the year in which the revocation occurs
2. Public Law 106-311, effective December 18, 2000
The H-1b fee for non-exempt employers will rise from $500 to $1000. The types of H-1b petitions subject to the fee remain the same.
3. Visa Waiver Permanent Program Act, enacted October 30, 2000
An amended H-1b petition is not required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where the new H-1b employer following the restructuring acquires all or substantially all of the liabilities as well as assets of the original H-1b employer and where the terms and conditions of the H-1b employment remain the same except for the identity of the subsequent H-1b employer. Note: this provision applies whether or not the subsequent employer pays the H-1b employee under a new Employer Identification Number (EIN) and/or whether the Labor Condition Application (LCA) must be amended as a result of the restructuring.

H-1b ALTERNATIVES
Often, an alien may be employed under more than one classification. This is particularly important in cases where the annual cap on H-1b numbers has been reached. For more information on these alternatives, you may refer to the following employer bulletins:

99-03 Business Visitor Activities
99-04 Treaty Traders (E-1/E-2)
99-05 Employing Foreign Students (F-1)
99-06 Work Eligibility for Dependents in G-4 Status
99-08 Petitioning for Alien Labor to Fill Temporary Needs (H-2)
99-09 Nonimmigrant Status for Alien Trainers and Trainees (H-3)
99-10 Intracompany Transferees (L-1)
99-11 Employing Canadian and Mexican Professionals under NAFTA
99-14 Employment Based Permanent Residence
99-19 Aliens with Extraordinary Ability (O-1)
99-20 Internationally Recognized Alien Athletes, Artists, and Entertainers (P-1/P-2/P-3) (in progress)
99-21 Participants in International Cultural Exchange Program (Q-1) (in progress)

President Statement of Signing the S.2045 Bill (for fact sheets of White House, click here)

THE WHITE HOUSE

Office of the Press Secretary

______
For Immediate Release October 17, 2000

STATEMENT BY THE PRESIDENT

I am pleased today to sign into law S. 2045, the "American
Competitiveness in the Twenty-First Century Act," and H.R. 5362, an Act to
increase the fees charged to employers who petition to employ H-1B
non-immigrant workers. Together, these laws increase the number of H-1B
visas available to bring in highly skilled foreign temporary workers and
double the fee charged to employers using the program to provide critical
funding for training U.S. workers and students. The Acts recognize the
importance of allowing additional skilled workers into the United States to
work in the short-run, while supporting longer-term efforts to prepare
American workers for the jobs of the new economy.

At the core of my economic strategy has been the belief that fiscal
discipline and freeing up capital for private sector investment must be
accompanied by a commitment to invest in human capital. The growing demand
for workers with high-tech skills is a dramatic illustration of the need to
"put people first" and increase our investments in education and training.
Today, many companies are reporting that their number one constraint on
growth is the inability to hire workers with the necessary skills. In
today's knowledge-based economy, what you earn depends on what you learn.
Jobs in the information technology sector, for example, pay 85 percent more
than the private sector average.

My Administration has made clear that any increase in H-1B visas should
be temporary and limited in number, that the fee charged to employers using
the program should be increased significantly, and that the majority of the
funds generated by the fee must go to the Department of Labor to fund
training for U.S. workers seeking the necessary skills for these jobs.
This legislation does those things. But the need to educate and train
workers for these high-skilled jobs goes beyond what has been addressed
here.

I want to challenge the high-tech companies to redouble their efforts to
find long-term solutions to the rapidly growing demand for workers with
technical skills. This will require doing more to improve K-12 science and
math education, upgrading the skills of our existing workforce, and
recruiting from under-represented groups such as older workers, minorities,
women, persons with disabilities, and residents of rural areas. Many
companies have important initiatives in these areas, but we clearly need to
be doing more.

This legislation contains a number of provisions that merit concern.
For example, one provision allows an H-1B visa holder to work for an
employer who has not yet been approved for participation in the H-1B
program. In addition, there are provisions that could have the unintended
consequence of allowing an H-1B visa holder who is applying for a permanent
visa to remain in H-1B status well beyond the current 6-year limit. I am
concerned that these provisions could weaken existing protections that
ensure that the H1-B program does not undercut the wages and working
conditions of U.S. workers, and could also increase the vulnerability of
H--1B workers to any unscrupulous employers using the program. For
example, one of the key requirements of the H-1B program is that the
foreign worker is paid the same wage as U.S. workers doing the same job.
This legislation, however, by allowing H-1B workers to change employers
before a new employer's application has been approved, could result in an
employer -- knowingly or unknowingly -- not paying the prevailing wage.
For these reasons, I am directing the Immigration and Naturalization
Service, in consultation with the Department of State and the Department of
Labor, to closely monitor the impact of these provisions to determine
whether the next congress should revisit these changes made to the H-1B
program.

I had hoped that the Congress would take this opportunity to address
important issues of fairness affecting many immigrants already in this
country. We need to meet the needs of the high-tech industry by raising
the number of visas for temporary high-tech workers. But we also must
ensure fairness for immigrants who have been in this country for years,
working hard and paying taxes. The Latino and Immigrant Fairness Act
(LIFA) will allow people who have lived here for 15 years or more -- and
who have established families and strong ties to their communities -- to
become permanent residents. It will also amend the Nicaraguan Adjustment
and Central American Relief Act (NACARA) to extend the same protections
currently offered to people from Cuba and Nicaragua to immigrants from
Honduras, Guatemala, El Salvador, Haiti, and Liberia who fled to this
country to escape serious hardship. Finally, it will allow families to
stay together while their applications for permanent resident status are
being processed. These fundamental fairness provisions have been embraced
by humanitarian groups, business groups, and Members of the Congress from
both sides of the aisle. I will continue to insist strongly on passage of
the Latino and Immigrant Fairness Act this year, before the Congress
adjourns.

 

WILLIAM J. CLINTON

THE WHITE HOUSE,
October 17, 2000.

(For the Whitehouse site, click here.)


Matthew Oh, Esq. Reflects on New Legislation, S. 2045 (Click here for future reference)