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(#139-11/16/00)

H-1B Bills Finally Signed by President
and Become Law


President Clinton signed S. 2045, the H-1B bill, and H.R. 5362, the H-1B fee increase bill on October 17, 2000. The following are some frequently asked questions about this new legislation.

1. How many new visas are available? Will there be enough?

The H-1B quota is increased to 195,000 for each of fiscal years 2001, 2002, and 2003. It then drops back down to 65,000 in fiscal 2004. It is hard to say if that will be enough. The best advice is generally to apply for your H-1B visa as soon as possible. The INS allows you to submit an application up to 6 months before the anticipated "start" date.

2. Under what circumstances can someone who is running out of his/her six years in H-1B status extend that status?

H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.

3. Can beneficiaries of H-1B petitions start to work before the INS approves the application?

The new law allows only beneficiaries of a "change of employer" H-1B petition to begin the new employment upon filing of the petition with the INS, rather than waiting for the petition to be approved by the INS. The petition must be nonfrivolous, and the beneficiary must be a nonimmigrant admitted to the US No particular nonimmigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status, must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed with the INS.

4. Can someone with a "change of employer" H-1B petition pending since before the new law's passage change employers now under the new law, before the petition is approved?

Yes.

5. What processing times for petitions and applications did Congress set forth for INS?

The law provides a "sense of the Congress" that INS should eliminate its current backlog and reduce processing times for Hs, Ls, Os and Ps to 30 days, and all other petitions and applications (including family-based) to 180 days. To fund this endeavor, the law authorizes appropriations necessary for INS to carry out the steps needed.

6. Has the H-1B "training fee" changed?

Yes, in a separate piece of legislation (H.R. 5362), the amount of the fee has been increased from $500 to $1,000. The fee increase is effective on December 17, 2000.

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