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by Cyrus Mehta

We continue our analysis of the provisions of the American Competitiveness in the 21st Century Act. This article is in continuation to our previous articles under this series - "Analysis of the New H-1B Law" and "The New Law's Portability Provisions." This week we will discuss the number of H-1B visas available under the new law as well as the mechanisms under which unused visas of the employment-based immigrant visa category will be applied to countries such as India and China, which have had backlogs for a few years.

A. Availability of H-1B visas under new laws

The H-1B visa quota has been increased from 115,000 to 195,000 for fiscal years 2001, 2002 and 2003. It then drops to the pre-1998 level of 65,000 visas in fiscal year 2004.

Although there is a cap of 195,000, which may be reached if the economic boom continues, a noticeable number of H-1B visas will not be counted towards the cap.

The new law creates several exceptions from the quota for the following categories:

H-1Bs hired by institutions of higher learning, affiliated research organizations, nonprofit research organizations and governmental research organizations. This exception is estimated to account for between 6,000 and 10,000 H-1B visas per year.
H-1Bs granted to physicians who have obtained a Conrad 20 waiver of the J-1 two-year home residence requirement.
Because the legislation increases the quotas for fiscal 1999 and 2000 to whatever was the number needed to meet those years' demands, and treats petitions (filed up to September 1, 2000) as applicable to fiscal 2000, fiscal 2001 effectively "starts fresh" without any carry-over of petitions left over from the last fiscal year. This provision will prevent more than 30,000 H-1B numbers from last year being charged to the current year's quotas.
The legislation requires INS to put an H-1B number back into the pool of available numbers each time an H-1B status is revoked for fraud or willful misrepresentation. This particular provision is not expected to account for a significant number of visas, however.
The new law corrects INS' past errors in its approach to counting H-1Bs, instructing that those who have received an H-1B in the past 6 years (and who are not eligible to begin another 6 years of H-1B status), and for whom multiple petitions have been filed, be counted only once. It has been estimated that these counting errors have in the past accounted for at least 3,000 and possibly as many as 12,000 H-1B numbers in a given year.

With the combination of increasing H-1B visas to 195,000 along with the above exceptions from the quota, it is hoped that H-1B numbers will be sufficient for the next year or two, but no one can be too certain!

B. Expected immediate effect of new law provisions on employment-based India and China backlogs.

According to Charles Oppenheim (the individual at the Department of State responsible for preference cut-off dates), significant movements forward in cut-off dates are not likely to happen until December 2000 (but a cut-off date for the Philippines third preference is likely to be established at that time). He is uncertain as to whether and when there will cease to be any per-country backlogs, due to a lack of information from INS as to the number of cases caught in processing backlogs and as to expected processing times, but Mr. Oppenheim believes per-country cut-off dates will continue at least for the first two quarters of fiscal year 2001.

The new law has two provisions that would provide relief to the India and China employment-based category backlogs.

104 provides that if the total number of visas available in all the five employment-based categories exceed the number of qualified immigrants who may otherwise be issued such visas, the visas shall be made available without regard to the numerical limitation created by the per-country limits.

106 provides for the recapture of unused employment-based visas in fiscal years 1999 and 2000, and add them to fiscal years 2001 and subsequent years.

We will continue to provide analysis of the new law's provisions in subsequent articles.

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City.He is the trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award.He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or