National Immigration Services
An Immigration Law Firm

MyVisa.com

AC21 and the H-1B visa

The INS provided the following information on November 21, 2000 which details changes the American Competitiveness in the 21^st Century Act (AC21) makes on the current H-1B program.  

On October 17 and 30, 2000, former President Clinton signed into law several bills which significantly change the H-1B program as well as the employment based immigration program. 

Q1: How does AC21 affect the H-1B cap?  

A1: Section 214(g) of the Immigration and Nationality Act (Act) sets an annual limit on the number of aliens that can receive H-1B status in a fiscal year. For FY2000 the limit was set at 115,000. AC21 increases the annual limit to 195,000 for 2001, 2002 and 2003. After that date the cap reverts back to 65,000.  

Q2: Are there new exemptions to the H-1B cap?  

A2: Yes. In addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:  

• Institutions of higher education;  
  

• Related or affiliated nonprofit entity, or  
  

• Nonprofit or government research organization.  
  

AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption.

In addition, the FY 2001 cap does not include H-1B petitions filed after INS reached the FY 2000 cap on March 22, 2000 but before September 1, 2000. INS estimates that approximately 30,000 petitions were filed during that time frame.  

Q3: How does INS plan to adjust its current counting method so that any petitions filed prior to September 1, 2000 will not count against the FY 2001 cap?  

A3: The Service already electronically captures the date a petition was received by INS. Therefore, our ability to electronically separate cases file before 09/01/00 is already in place.  

Q4: What steps has INS taken to improve its counting to ensure that multiple beneficiaries are only counted once as required by the new law?  

A4: The Service has conducted sweeps of the H-1B data to identify multiple beneficiaries to ensure that they are counted toward the cap only once in past fiscal years. We will continue with that process insuring that we conduct the sweep on using H-1B data for the past six years.  

Q5: The bill requires that INS may not count someone toward the cap if they have had H-1B status in the prior 6 years, unless the individual would be authorized for a new 6-year period of stay. How is INS going to implement this? How does this differ from INS’ current counting methodology?  

A5: INS is revising its regulations to explain when an H-1B worker is eligible for a new 6-year period of stay. System changes will be made in order to allow the Adjudicator to indicate whether an individual who was previously H-1B is now eligible for a new 6-year period of stay. This indicator will enable the Service to properly count an individual toward the cap in these circumstances. Upon approval of the petition, the program will compute the number of H1B visas issued according to the factors as defined by statute.