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How
the new H-1B law 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, rely on these specialty occupation workers to help them
develop cutting-edge technologies as the Internet revolution
continues to explode.
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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