President Signs H-1B Bills Into Law

Office of the Press Secretary
For Immediate Release October 17, 2000
STATEMENT BY THE PRESIDENT

I am pleased today to sign into law S. 2045, the "American
Competitiveness in the Twenty-First Century Act," and H.R. 5362, an Act
to increase the fees charged to employers who petition to employ H-1B
non-immigrant workers. Together, these laws increase the number of H-1B
visas available to bring in highly skilled foreign temporary workers and
double the fee charged to employers using the program to provide critical
funding for training U.S. workers and students. The Acts recognize the
importance of allowing additional skilled workers into the United States
to work in the short-run, while supporting longer-term efforts to prepare
American workers for the jobs of the new economy.

At the core of my economic strategy has been the belief that fiscal
discipline and freeing up capital for private sector investment must be
accompanied by a commitment to invest in human capital. The growing demand
for workers with high-tech skills is a dramatic illustration of the need to
"put people first" and increase our investments in education and training.
Today, many companies are reporting that their number one constraint on
growth is the inability to hire workers with the necessary skills. In
today's knowledge-based economy, what you earn depends on what you learn.
Jobs in the information technology sector, for example, pay 85 percent more
than the private sector average.

My Administration has made clear that any increase in H-1B visas should
be temporary and limited in number, that the fee charged to employers using
the program should be increased significantly, and that the majority of the
funds generated by the fee must go to the Department of Labor to fund
training for U.S. workers seeking the necessary skills for these jobs. This
legislation does those things. But the need to educate and train workers
for these high-skilled jobs goes beyond what has been addressed here.

I want to challenge the high-tech companies to redouble their efforts to
find long-term solutions to the rapidly growing demand for workers with
technical skills. This will require doing more to improve K-12 science and
math education, upgrading the skills of our existing workforce, and
recruiting from under-represented groups such as older workers, minorities,
women, persons with disabilities, and residents of rural areas. Many
companies have important initiatives in these areas, but we clearly need to
be doing more.

This legislation contains a number of provisions that merit concern. For
example, one provision allows an H-1B visa holder to work for an employer
who has not yet been approved for participation in the H-1B program. In
addition, there are provisions that could have the unintended consequence
of allowing an H-1B visa holder who is applying for a permanent visa to
remain in H-1B status well beyond the current 6-year limit. I am concerned
that these provisions could weaken existing protections that ensure that
the H1-B program does not undercut the wages and working conditions of U.S.
workers, and could also increase the vulnerability of H--1B workers to any
unscrupulous employers using the program. For example, one of the key
requirements of the H-1B program is that the foreign worker is paid the
same wage as U.S. workers doing the same job. This legislation, however, by
allowing H-1B workers to change employers before a new employer's
application has been approved, could result in an employer -- knowingly or
unknowingly -- not paying the prevailing wage. For these reasons, I am
directing the Immigration and Naturalization Service, in consultation with
the Department of State and the Department of Labor, to closely monitor the
impact of these provisions to determine whether the next congress should
revisit these changes made to the H-1B program.

I had hoped that the Congress would take this opportunity to address
important issues of fairness affecting many immigrants already in this
country. We need to meet the needs of the high-tech industry by raising
the number of visas for temporary high-tech workers. But we also must
ensure fairness for immigrants who have been in this country for years,
working hard and paying taxes. The Latino and Immigrant Fairness Act
(LIFA) will allow people who have lived here for 15 years or more -- and
who have established families and strong ties to their communities -- to
become permanent residents. It will also amend the Nicaraguan Adjustment
and Central American Relief Act (NACARA) to extend the same protections
currently offered to people from Cuba and Nicaragua to immigrants from
Honduras, Guatemala, El Salvador, Haiti, and Liberia who fled to this
country to escape serious hardship. Finally, it will allow families to stay
together while their applications for permanent resident status are being
processed. These fundamental fairness provisions have been embraced by
humanitarian groups, business groups, and Members of the Congress from both
sides of the aisle. I will continue to insist strongly on passage of the
Latino and Immigrant Fairness Act this year, before the Congress adjourns.

WILLIAM J. CLINTON
THE WHITE HOUSE,
October 17, 2000.

• Name of the New Laws: The new law is entitled the "American Competitiveness in the 21st Century Act of 2000".

• Effective Date: The new laws became effective on October 17, 2000 except the filing fee increase. The filing fee will be increased for any H-1B petition filed at the INS after December 17, 2000.

• H-1B Quota Increase: The cap is 195,000 for the years of 2001, 2002, and 2003. That is a substantial increase from the year of 2000 of 115,000.

• More H-1B applications are not subject to the cap. Under the old laws, the following applications are not subject to the quota:

  1. applications for extensions of H-1B status,

  2. H-1B petitions for concurrent employment where the alien worker is presently in H-1B status,

  3. H-1B petitions to change employers. Under the new laws, in addition to the three categories, there are two more categories:

  4. H-1B applications sponsored by institutes of higher education (or a related or affiliated nonprofit entity) and government or nonprofit research organizations; and

  5. H-1B applications for physicians who received J waivers under a Conrad State 20 Program.

• Backlog Clearance: The bill mandates that all H-1B cases approved in 1999 after the cap was reached and before October 1, 1999 are counted against the FY1999 cap, and all cases filed before September 1, 2000 are to be counted against the FY2000 cap, regardless of when they are approved. In essence, the caps for those years are raised to accommodate the backlog clearance.

• H-1B Count: The new laws prohibit the INS from counting someone toward the H-1B cap if they have had H-1B status in the previous 6 years, unless the individual would be authorized for a new six-year period of stay at the time the petition is filed.

• Six Years Limits: In two special situations, a H-1B holder can extend his status beyond the six years' limit. In the first situation, a H-1B holder who is the beneficiary of a approved EB-1, EB-2 or EB-3 visa petition; and (2) waits for the quota to apply for adjustment of status may apply to the INS for extensions of H-1B status beyond six years until his adjustment of status application has been adjudicated. Please notice that the law states that the application "may" be approved, which means that it may be denied as well. The INS has the discretion and yet to adopt a policy to judicate cases like this. This special exception will mostly benefit H-1B holders from India and China since they are subject to quota in EB-2 and EB-3 categories. In the second situation, a H-1B holder who are the beneficiaries of filed EB petitions or who have submitted applications for adjustment of status, and only if 365 days or more have elapsed since (a) the filing of an application for a labor certification on their behalf or (b) the filing of an EB visa petition on their behalf, may petition for H-1B extension on a year to a year basis beyond the six years. In this situation, if the labor certification is still pending, the alien can not be excepted from the six years rule.

• Change to a new employer: Under the new laws, a H-1B worker may change employers as soon as his new employer submits a non-frivolous H-1B petition to the INS. No approval is necessary as it was required under the old laws. In another word, H-1B non-immigrants may change jobs upon the filing of a new petition by the new employer as long as the individual is in lawful H-1B status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission.

• The increase in filing fees for an H-1B petition: The new fees are $1,100. Among them, $110 is the filing fee for H-1B petition, and $1,000 is for the training of US workers. The employers must pay the $1,000.

• Change of a employer during green card application process: An alien may change to another employer and the change will not affect his adjustment of status if he filed I-485 for at least 180 days and he will work in the same or similar position for the new employer.

• Recapture of Unused Employment-based Immigrant Visas: Per country immigration quota of EB is the same, 10,000 per country. However, under the new laws, unused quato from a country can be used by the aliens from that country in subsequent quarters without regard to per-country limits. In another words, the new laws provide that any employment-based immigrant visas that were available but unused in FY1999 and FY2000 are to be stored for use in future fiscal years if the demand for employment-based visas exceeds the overall cap for that year.

• Recovery of Fraudulent Visas: The new laws provide that for any H-1B petition revoked for fraud or willful misrepresentation, the visa number shall be added back to the cap in the year the petition is revoked, regardless of when the visa was actually issued.

• Studies and Reports: The new laws require a new National Science Foundation study on the divergence of access to high technology , Dept. of Commerce to conduct a review of existing public and private high-tech workforce training programs in the United States.

• Backlog Reduction Provisions: The new laws provide for the creation of a new Immigration Services and Infrastructure Improvement Account and authorizes appropriations to fund this account in order to reduce INS processing time of all cases to less than 180 days and eliminate the backlog of pending cases. The new laws require INS to provide a backlog elimination plan to Congress within 90 days of the enactment of the laws, and annual reports on their service provision situation and progress toward improvement. Hopefully, the processing time for I-140 will be within 180 days.