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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

ABCs of Immigration - INS Guidance Memo on New H-1B Visa Law
by Greg Siskind and Amy Ballentine

Recently the INS released a memo providing statements on the American Competitiveness in the Twenty-First Century Act (AC21), the law passed last year that raised the annual H-1B visa cap and changed a number of other provisions dealing with nonimmigrants on H-1B visas. Until the agency releases regulations and further guidelines, this memo encompasses the INS’s positions on this law.

Under AC 21, the annual H-1B visa cap is increased to 195,000 for fiscal years 2001, 2002 and 2003, after which it will return to 65,000. The law also increased the special H-1B visa fee from $500 to $1000. However, it also expanded the list of employers who are exempt from the fee. Entities exempt from this fee are:

  • Primary and secondary educational institutions,

  • Institutions of higher learning,

  • Nonprofit organizations associated with an institution of higher learning,

  • Nonprofit organizations that provide curriculum related clinical training for students at institutions of higher learning,

  • Nonprofit research organizations, and

  • Governmental research organizations

Under AC21 a number of employees are also exempt from the annual cap. Prior to AC21 the only beneficiaries who were exempt from the cap were those who were already in H-1B status and were seeking an extension of their visa or a change in employment. Those now exempt from the annual cap include:

  • Previous J-1 visa holders who have obtained a waiver of the home residency requirement through a state-20 program,

  • Beneficiaries employed by an institution of higher learning or related nonprofit organization

  • Beneficiaries employed by a nonprofit research organization,

  • Beneficiaries employed by a governmental research organization,

  • Beneficiaries who have already obtained an H-1B visa and are seeking a concurrent H-1B visa

Once a beneficiary not previously counted toward the cap leaves the employ of the institution of higher learning or research organization, they will be counted toward the cap.

One of the most important aspects of AC21 was the creation of the means for H-1B visa holders with approved I-140 petitions who were not yet able to apply for adjustment of status because of the per country limits on immigration to apply for an extension of their H-1B visa beyond the six-year limit on H-1B status. Such applicants can obtain three-year extensions of their H-1B visas until a visa number becomes current and they are able to apply for adjustment of status. Under the guidance provided in the memo, dependents of H-1B visa holders are also to be granted extensions. The $1000 fee must accompany extension applications unless the petitioning employer is otherwise exempt.

Another important part of AC21 was the creation of H-1B visa portability. This allows some people to begin work for a new employer as soon as the INS receives a properly filed application from the new employer. To be eligible for H-1B visa portability the employee must meet three requirements:

  1. They must have been lawfully admitted to the US,

  2. The second application must have been filed before their authorized period of stay expires, and

  3. They cannot have been employed without authorization at any time since the most recent admission to the US.

Because of the uncertainty involved in beginning work for a new employer before receiving the approval notice from the INS, the INS states in the memo that until final regulations are developed, it will not deny benefits or initiate deportation proceedings based on a portability problem without first consulting with the Immigration Services Division of the INS. In many of these cases, the INS expects that no decision will be made until the final regulations are released.

One of the most controversial parts of the INS memo deals with portability of those who are not still in H-1B status. According to the memo, “On the one hand, Congress does not appear to have limited portability benefits only to those who are working lawfully in H-1B status at the time a new employer files a new H-1B petition on their behalf. Nor, on the other hand, does Congress appear to have extended portability benefits to any alien who has ever held H-1B status, no matter how long ago or what the alien’s current status in the United States.” While the memo does not address what will be done to deal with this right now, leaving that for the final regulation, it does state that the INS is considering a rule that would give H-1B beneficiaries a period of time, “such as 60 days,” after leaving the first employer to begin work with a second employer under the portability provisions.

The memo addresses the subject of a January 29, 2001 memo on the admission of H-1B nonimmigrants claiming visa portability. The memo provides that they are admissible and can begin work immediately for the second employer if they possess a valid, unexpired visa stamped with the name of the first employer, had previously been in the US as an H-1B nonimmigrant, and had a new H-1B petition filed on their behalf before their authorized period of entry expired. They will be admitted for the period remaining on the previously issued visa, plus ten days.

The memo also addresses the provisions of AC21 that deal with extension of H-1B status in cases of lengthy adjudications. (Note – this is different than the extension of status discussed above, which deals only with delays caused by the per country limits). The extensions discussed now deal with H-1B visa holders who have an approved I-140, and whose I-140 or labor certification was filed one year ago. These people may have their H-1B visas extended in one-year increments. To obtain the extension, a new H-1B application including evidence of the approval of the I-140 is filed, including, if required, the $1000 fee. The I-140 will show the priority date, which will show when the labor certification was filed. [7/12/01 correction. It is necessary that the I-140 be filed, NOT that it be approved.]

Finally, the memo addresses the AC21 provision that allow applicants for adjustment of status to change jobs if their application for adjustment has been pending for more than 180 days. The applicant’s new job must be in “the same or similar occupational classification” as the job for which the labor certification was made. The applicant should send a letter to the INS notifying the agency that he or she will no longer be working for the petitioning employer. The INS will then request a letter from the new employer, which should include the job title, job description, and salary.

Based on past experience, it could be many years before the final regulations for AC21 are issued, so until then, this memo, and others that will doubtless be published in the future, is all that immigrants, employers, and practitioners have to guide their approach to AC21.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com



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