New H-1B Law Offers More Visas and Portability

In late 2000, the United States Congress passed and President Clinton signed into law the new H-1B bill named “American Competitiveness in the Twenty-first Century Act of 2000” (“AC 21”). The H-1B visa, also known as working visa, is utilized by employers to petition professionals with special expertise. The most notable aspects of AC 21 are the availability of more H-1B visas and their portability.

Under AC 21, the annual cap on H-1B visas increases to 195,000 for each of fiscal years 2001, 2002, and 2003. In addition, certain types of H-1Bs, such as those filed by institutions of higher education and nonprofit organizations, physicians with Conrad 20 waiver of the J-1 two-year home residence requirement, and revoked or renewed H-1Bs, will not count towards the quota. The “fresh start” provision of the law will automatically increase the quotas for fiscal years 1999 and 2000 to whatever was needed to meet those years’ demands. These provisions will ensure that sufficient visas are available and prevent any carryover of petitions from previous years.

The portability provision of AC 21 works two ways. First, it allows H-1B employers to hire and employees to accept new employment upon the filing of the petition by the prospective employer provided they were previously issued an H-1B visa and have not been employed without authorization. The employment authorization will continue until the new petition is adjudicated. This provision will be applied retroactively, meaning to all H-1B petitions filed before, on, or after the enactment of AC 21.

Second, AC 21 provides for increased job flexibility by allowing employment-based adjustment (green card) applicants to change jobs. The adjustment applicant may change jobs or employers without invalidating the underlying I-140 petition for immigrant worker or labor certification if the adjustment application has been pending for more than 180 days and as long as the new job is in the same or a similar occupational classification as the one which the petition was filed and/or certifications was issued. This provision was especially needed in light of the long delays experienced by adjustment applicants.