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New H-1B laws affects an employer's hiring decisions

H-1B foreign national employees comprise an important part of our country’s workforce. Companies, especially among high-tech industries.

Over the past several years, the numerical restrictions placed on H-1B has hampered the quick deployment of these professionals. Once the H-1B allocation had been exhausted, companies were forced to wait until the next fiscal year for the next batch of work visas. For those who had available H-1B visas, lengthy INS processing times made it difficult to predict when a foreign national could be employed.

Last year, legislation was introduced in Congress to ameliorate these issues. On October 17, 2000, President Clinton has signed into law both S. 2045 and H.R. 5362. S. 2045 made significant improvements to H-1B regulations while H.R. 5362 sought to benefit the American workforce by increasing the fee employers must pay to hire an H-1B worker. The following is a summary of the major changes to the H-1B category and how it impacts employers and their efforts to recruit foreign national skilled workers.

H-1B Cap:
For fiscal years 2001, 2002, and 2003, the total number of H-1B visas available each year has been increased to 195,000. In past years, the cap was set at 115,000 and was quickly reached in the spring of each year. The increase will help provide more skilled workers to meet the demand of high-tech companies and should delay the reaching of the cap until the summer.

Exemption from the Cap:
H-1B applicants who will be employed at nonprofit research, university, or government institutions will not be counted toward the cap. Therefore, hiring departments at these organizations no longer need to be concerned about the limited availability of H-1Bs. Timing the submission of an H-1B petition to the INS will also be less of a factor.

Portability of H-1B Status:
Under previous H-1B regulations, an H-1B employee seeking to work for another employer could not begin working for that employer until the INS processed and approved the transfer petition. This created significant delay for the transferring employer because it could take 3 months before the employee could actually commence work.

The new regulations permit the H-1B employee to begin working for the new employer upon the filing of the transfer H-1B petition with the INS. H-1B applicants who currently have a transfer petition pending with the INS can begin working for the new employer immediately. These changes will significantly enhance hiring decisions and facilitate bringing in much needed skills for time-sensitive projects. H-1B employees can utilize this provision so long as he or she was in lawful status at the time of filing the H-1B petition and provided that the employee has not engaged in any unauthorized employment since last entering the U.S.

Extensions beyond Six Years for H-1Bs Awaiting Green Cards:
H-1B nonimmigrants will be permitted to apply for one-year extensions beyond the six-year maximum provided that they have either filed an I-140 immigration application or an I-485 adjustment of status application AND that one year or more has passed since the filing of labor certification or the I-140. This important development enables H-1B workers who have reached the six year maximum to stay and continue working in the U.S. while waiting for their green cards. Prior to this, such individuals were forced to leave the U.S. if they had not received their green card in time.

H-1B fee increase:
The new legislation increases the scholarship fee employers must pay from $500.00 - $1,000.00 These funds will be used for the training of U.S. workers and scholarships for American students studying math and the sciences. This fee was effective December 17, 2000.

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