Visas are easier for temporary high-tech labor
Published 11/07/00

On October 17, 2000, President Clinton signed into law the American Competitiveness in the 21^st Century Act, a bill which makes several important changes to the law regarding H-1B visas, a temporary visa commonly used for high technology workers, managers, and other skilled professionals. The new law also makes certain dramatic changes to other aspects of immigration law.

The most significant change made by the American Competitiveness in the 21^st Century Act is to increase the number of H-1B visas available for each year to 195,000. Prior to passage of this Act, there would have been only 107,500 H-1B Visas available for the current fiscal year, and that number would then have eventually dropped back to 65,000 H-1B visas. The Act increases the number of H-1B Visas to 195,000 per year for each of the fiscal years 2001, 2002 and 2003. In addition, H-1B Visas used by institutions of higher learning, non-profit organizations, and governmental research organizations are no longer counted toward the cap, which should make available an additional 5,000 to 10,000 H-1B visas per year.

An additional very significant change made by the Act is that H-1B visa status is now much more "portable." When an alien is already in the United States on some form of non-immigrant visa, such as an F-1 student, a B-1 business visitor, or an H-1B visa for another employer, among others, that alien can now begin legally working for a new employer immediately upon the filing of a good faith H-1B application by that new employer. This is a significant change from prior law, and makes it substantially easier for H-1B visa holders to change jobs. Prior to the new Act, an H-1B visa holder working for a particular employer could change employers, but could not do so until his or her new employer had applied for and obtained H-1B visa status on his or her behalf. Because the Immigration and Naturalization Service ("INS") takes from 30-90 days to process H-1B visa requests, this had made it substantially more difficult to hire existing H-1B visa holders, as the H-1B visa holder could not start immediately with the new employer. Now, as long as the potential employee is in some kind of legal non-immigrant status in the United States, a new employer can file for an H-1B visa on that employee’s behalf, and the employee can begin working immediately upon the filing of a good faith application.

Related to this increased portability of H-1B visas is a change made by the Act to the law regarding aliens who are in adjustment of status. Ordinarily, when an employer files for a green card on behalf of an employee, if the employee is already in the United States, the employee rather than leaving the United States to obtain the green card at a U.S. Consulate will go through a process know as "adjustment of status" in the United States. Adjustment of status applications have been significantly backlogged at INS, and some individuals waiting for adjustment of status have been in adjustment of status for several years. Under prior law, those individuals were unable to change employers because doing so would cause them to have to begin the green card process all over again. Under the new Act, however, an alien who has been in adjustment of status for in excess of 180 days will now be able to move to a new employer in the same or a similar job classification without his or her adjustment request being affected.

These are only a few of the many significant changes made by the new Act. Employers or employees who are in the midst of the H-1B or green card process, or who are contemplating utilizing either of these immigration processes, should consult with legal counsel regarding the impact of the American Competitiveness in the 21^st Century Act.

The attorney who wrote this article is no longer at the law firm of Hamblett & Kerrigan, P.A. in Nashua. Other practitioners at the firm handle work in the same areas of law which he worked in, which included employment law, family law, and general litigation, including property tax abatement and personal injury.You can reach one of those lawyers by calling the law firm (883-5501) or by e-mail at info@nashualaw.com .

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.