Major Immigration Bill Passed by Congress – Details
Posted Oct 06 , 2000

As mentioned in our Newsflash on Wednesday, October 4, 2000, in this article, in this article in the MurthyBulletin, we have added other provisions of the Bill and added Section numbers too. The Bill once signed will be called the American Competitiveness in the Twenty first Century Act of 2000 ("ACTA") and is expected to be signed by President Clinton in the very near future. <m1u2r3t4h5y>
 
On the evening of October 3, 2000, the U.S. Senate and the House of Representatives of the United States in Congress passed the Senate version of the Bill 2045. This Bill is a major victory for all of us who have lobbied strongly for our Congress to pass a measure that would help companies retain highly-skilled professionals in a tight labor market. It is a help to individuals who have been with companies for several years but are being forced to leave the U.S. because of delays in processing by the INS and the U.S. Department of Labor, etc. <m1u2r3t4h5y>

The Bill, when signed by President Clinton, will become the law and will be called the American Competitiveness in the Twenty-First Century Act of 2000 ("ACTA").

Major highlights of ACTA are listed below :

Increase in H1B Quota and Fees

Under Sections 102 and 103, the total number of H1B Petitions or visas that can be issued in Fiscal Years 2001, 2002, and 2003 (which starts on October 1, 2000 and ends on September 30, 2003) will be 195,000 for each fiscal year. This substantially increases the numbers from the existing 107,500 and which would have reverted back to 65,000 from the next fiscal year (FY). A separate bill, H.R. 5362 will increase the H1B "training fee" paid by most employers from $500 to $1,000 per H1B Petition. <m1u2r3t4h5y>

Exemptions From the H1B Quota

Under Section 103, the H1B quota of 195,000 for each FY will not apply against a person who is employed and will work at a university or affiliated non-profit entity or government research organization. Also exempt from the H1B numerical limitation is a person who has previously been counted against the H1B quota. A person should be counted only once against the numerical limitation unless the person again obtains a full six years of authorized admission on H1B status. <m1u2r3t4h5y>

Per Country Quotas for Immigrant Visas

Under Section 104, with respect to immigrant visas, the per country quota, which has been adversely affecting those from China and India and which the U.S. State Department had stated could possibly affect those from the Philippines in the near future, may have been resolved with this Bill. It has always been the case that not all of the available immigrant visas were issued, since most countries did not have enough applicants to use the total available. ACTA provides that if the INS or the U.S. State Department does not issue all of the immigrant visas that should be issued in that FY, the unused immigrant visa numbers should be made available to all countries without the per country quota limit applying. <m1u2r3t4h5y>

H1B Can Start Working Upon Filing of H1B

Under Section 105, a person who is already on H1B status is allowed to accept new employment and start working for the new employer immediately upon filing the new H1B petition with the new employer as long as the person has satisfied all of the following 3 criteria:

• been lawfully admitted in to the U.S., <m1u2r3t4h5y>

• filed a non-frivolous H1B or other non-immigrant petition which is pending for new employment;  <m1u2r3t4h5y>

• never been employed without authorization in the U.S. before the filing of the H1B petition. <m1u2r3t4h5y>

The surprising and wonderful thing about this clause is that it is retroactive and applies to all those H1B petitions that were filed before, on, or after the date of the enactment of ACTA. So when the Bill is signed into law, those who are awaiting an H1B approval can start working for the new employer. If the H1B Petition is denied, then the person can no longer work. <m1u2r3t4h5y>

H1B Extensions Beyond Six (6) Years Allowed

Under Section 106, In a provision to penalize the Department of Labor and INS for their lengthy adjudications, ACTA provides that if labor certification or an I-140 petition was filed at least one year ago AND the person still has an I-140 or an I-485 pending, then the H1B six year cap shall not apply against the person. Rather, the INS will approve an H1B petition extension in one-year increments until a final decision is been made on the person's lawful permanent resident status. <m1u2r3t4h5y>

Employee Can Change Jobs or Employers if AOS Pending Over 180 Days

Also under Section 106, certain job flexibility provisions have been added, for example, if an Adjustment of Status application has been pending for 180 days or longer, that Adjustment application will continue to remain valid even if the foreign national changes jobs or employers as long as the new job is in the same or similar occupational classification as the job for which the petition was filed. <m1u2r3t4h5y>

Extensions of Certain Provisions

Under Section 107, the "H1B dependent employer" provisions of the H1B law will continue until October 1, 2003, as also the Department of Labor's investigative authority which will be extended from September 30, 2001 until September 30, 2003. <m1u2r3t4h5y>

Recovery of Visa Numbers on H-1 Visas Denied for Fraud

Under Section 108, if an H1B Beneficiary who has been issued an H1B Petition approval but has not been issued the H1B visa by the consulate based on fraud or willful misrepresentation, and the INS revokes the non-immigrant petition of that person, then one number shall be returned to the pool of available H1Bs for the FY in which the Petition is revoked, irrespective of which FY the H1B Petition had originally been approved.

NSF Study and Report of the Digital Divide

Under Section 109, the National Science Foundation (NSF) is required to conduct a study of the socio-economic disparities in access to high technology facilities and education, a problem which is generally referred to as the "digital divide" in the U.S. Within 18 months after the date of the enactment of ACTA, the Director of NSF will be required to submit a report to Congress setting forth the findings of the study on the digital divide.

Scholarship Grants

Sections 110 and 111 provide for scholarship grants and training for U.S. workers. Out of the total amount deposited into the H1B Non-immigrant Petition Account, 15% of all such amounts shall be made available to the Director of the NSF to carry out either a direct or a matching grant program to support private-public partnerships in K-12 (primary and secondary) education. The purpose is to enable K-12 students to gain a stronger fundamental understanding of science, mathematics and technology and to develop critical thinking skills. Also some of the funding can be used towards improving skills for teachers in the use of technology in the classroom. The funds would also be used to improve science, mathematics, and technology skills in economically disadvantaged regions of the U.S. <m1u2r3t4h5y>

In addition, the grant money would be applied in order to increase the appreciation and understanding of science, mathematics, engineering, and technology, including at summer institutes by an institution of higher education for students in grades 7 - 12 and provide for partnerships with industry, educational institutions and community organizations. Furthermore, certain Scholarship Programs for low-income students would be increased from $2,500 per child, per year to $3,125 per year and the Director of NSF may renew the scholarship for up to 4 years.

The U.S. Secretary of Labor and the Director of the NSF are required to track and monitor the performance of all programs which receive the H1B non-immigrant grant funds and within one year of the date of enactment of ACTA, submit to both the Senate and the House the tracking system to monitor performance of such program grants and the number of individuals who have completed the training and entered the high skilled workforce as a result of such programs. <m1u2r3t4h5y>

Kids 2000 Act

Under Section 112 of ACTA, the U.S. Congress recognizes that there is an increasing epidemic of juvenile crime throughout the U.S. and that there are Boys and Girls Clubs of America that already have infrastructure and programs in place for immediate implementation of an after-school technology program. There is also the recognition that partnerships between the public sector and the private sector are an effective way of bridging the Digital Divide and providing the necessary skills and resources to America's underserved young people. H1B grant money can be used to hire teachers and other personnel and provide for goods and services, including computers, towards the technology programs.

Certain "J" Non-immigrants Excluded From H1B Cap

Under Section 114, the H1B cap of 195,000 for FY 2001, 2002, and 2003 shall not apply to any "J" non-immigrant who has been granted a waiver of the two-year home residency requirement based on working in a Conrad 20 Program.

Immigration Services and Infrastructure Improvement

Sections 201-205 are referred to as the Immigration Services Infrastructure and Improvement Act of 2000 ("ISII"). The purpose of ISII is to eliminate the current backlog and process all immigration benefit applications within one year of the enactment of ACTA and to maintain the elimination of the backlog in future years, as well as to provide for regular congressional oversight of the INS in eliminating backlogs and processing delays in the benefits section. <m1u2r3t4h5y>

The policy reasoning was that the Congress believes that all immigration applications should be completed no later than 180 days after the initial filing of the application. Exceptions would be a non-immigrant visa for those applying for H, L, O and P status, which should be processed by the INS no later than 30 days after the date of filing the petition.

Under 204, the Attorney General is required to take measures to reduce the backlogs in processing of immigration benefit applications; the objective is to completely eliminate the backlog in all pending cases no later than one year from the date of enactment of ACTA. The Attorney General is also to continue to make other needed improvements in the processing of immigration benefit applications to ensure that a backlog does not develop in the future. <m1u2r3t4h5y>

Section 205 provides that within 90 days of the date of enactment of ACTA, the Attorney General is required to submit a report to the Committees on the Judiciary and Appropriations of both the U.S. Senate and the U.S. House of Representatives, regarding the backlogs in immigration benefit applications in existence as of the date of ACTA and the plan for eliminating all such backlogs. In addition, within 90 days after the end of each Fiscal Year, the Attorney General will be required to submit the status of the appropriations in the account towards the elimination of backlogs and efforts made to eliminate all such backlogs.

Conclusion

Please note that since this Bill has not yet been signed by President Clinton, it is not yet considered the law of the land. Although the White House has expressed some concerns about this Bill, it has not threatened to veto it and this Bill is expected to be signed by the President of the United States within the next several days. <m1u2r3t4h5y>

This is indeed an incredible victory for the pro-immigration lobbying forces and for each of you who have helped to make this happen.