NEW H-1B REGULATIONS IN A NUTSHELL
(June 2001 INS Guidance)

In October 2000, the American Competitiveness in the 21st Century Act (AC 21) was passed and enacted as law.

All the provisions of the Act were effective from the date of enactment – i.e. 17th October 2000. In January 2001, interim guidelines for processing applications for admission of H-1 visas, which covered some of the provisions of this Act, were issued and these guidelines remain in effect. In addition the INS has finally issued guidelines (dated June 19th 2001), which summarize and interpret various relevant provisions of the AC21 law and touch on other issues that till now had not been tackled.

In very brief these provisions deal with:

Extension of stay to H-1Bs in Cases of Lengthy Adjudication

H-1B Non-immigrants can obtain an extension of stay beyond their 6 year maximum time in the country if:

- An Employment based I-140 petition or an I-485 application for Adjustment of Status has been
filed on their behalf and
- At least 365 days have passed since the filing of their Labor Certification or I-140 petition.

The Attorney General is required to grant extensions in one-year increments until such time as a final determination is made on the H-1B non-immigrants lawful permanent residence.

The petitioner (either the current employer or even a new employer) must file an I-129 petition with the appropriate filing fee, on behalf of the H-1B beneficiary. (If this is a second or subsequent request for extension of stay filed by the same petitioner, the fee would be $110/- and the petitioner would be exempt from the payment of the $1,000/- fee under the existing guidelines to Form I-129W.) Once approved, the petition will be valid for one year and one-year extensions will be given till such time as the beneficiary’s lawful permanent status is decided upon.

The status of an H-4 dependent is derivative and so linked to the status of the H-1 beneficiary. Hence an I-539 application for extension of status should be filed concurrently with the I-129 requesting for an extension of stay for the H-4 beneficiary also.

Change of Employment permitted in Cases of lengthy Adjudication

Where the alien changes jobs:

After receipt of approval to his I-140 employment based petition and
180 or more days have elapsed since he filed his I-485 Adjustment of Status petition and
The new job is still in the same or similar occupational classification as the job for which the certification or approval was initially made;

the adjudicators cannot deny his adjustment of status on the grounds that he has changed jobs.

The applicant must submit a letter notifying the INS that he no longer intends to remain in the employment of the employer who sponsored his employment based petition. Also the INS will require a letter from the new employer verifying that the job exists and specifying the exact job title, salary and job descriptions that he will be required to perform. This is so that a determination can be made that the new job is within the same or similar occupational classification as the old job. (Before denying any application on the basis that the new job is not in the same or similar occupational classification, the INS adjudicators have been instructed to first consult with the INS headquarters.) The salary is essential to determine whether the applicant is admissible under the public charge provisions.

One-Time Protection Benefits and Extension of H-1B status when Adjustment is pending under per country Limitations.

The AC21 enables H-1B non-immigrants with

 - approved I-140 petitions but
 - who are unable to adjust status because of the per country limits, to be granted a one time extension in increments of three years.

The procedure to be followed is for the sponsoring petitioner to file the Form I-129 along with the appropriate filing fee and all the supporting documentation. If the petition and extension for stay are otherwise approvable the statute provides that it cannot be denied because the maximum allowable 6-year H-1B period has elapsed.

Once again it has been clarified that the status of the H-4 dependent being derivative of and linked to the principal H-1B non-immigrant, an I-539 petition should be filed concurrently with the H-1B petition, to ensure that the dependents are also eligible to an Extension of Status.

H-1B Portability Benefits

Pursuant to AC21, an H-1B non-immigrant is permitted to change employers as soon as the new employer files a ‘non frivolous’ H-1B petition provided:

- the nonimmigrant was lawfully admitted and
- the new petition was filed before the end of their permitted authorized stay and
- the non-immigrant has not been unlawfully employed since his admission and before the filing of the new petition.

There has been considerable confusion as to whether this portability provision also covered persons who were not on H-1B status at the time of filing the new petition but who had previously been on H-1B status. In the June guidelines, the INS has acknowledged that portability benefits would extend to these H-1B employees too. It hence proposes that approximately 60 days, after leaving the initial H-1B employer, would be a reasonable period of time for a person to enjoy these portability benefits and to allow the non-immigrant to find a job with a new employer who would file a new H-1B on his behalf. However, this provision in the June 2001 guidelines is only a statement of policy provided for information only and should not be used as a standard until final rules have been passed. Until final regulations are issued service personnel have been instructed to consult with INS headquarters on a case-to-case basis.

Click here to read a detailed article on H-1 B Visa Portability Provisions.

Mergers, Acquisition or other Corporate Restructuring under the Visa Waiver Permanent Extension Act of 2000

A successor entity would be considered to be a successor-in-interest for immigration law purposes and accordingly the June 2001 guidelines confirm that the INS will not automatically issue amended approval notices with the name of the new entity. Although not legally necessary, if a new approval is required with the name of the new entity a new H-1B petition must be filed with the appropriate filing fee.

Although these guidelines do not as yet have the force of law it is expected that all INS Service Centers will conform to the policies on all the above issues and process cases accordingly.