The American Competitiveness in the 21st Century Act, passed
on October 17, 2000, brings welcome and beneficial changes
to the H-1B visa category. However, before focusing on these
changes it is useful to review the H-1B visa category generally.
The H-1B visa is the most commonly used temporary work visa
in the United States. It is called a "specialty occupation"
visa because it may only be used to fill positions which are
"professional-level" positions requiring at least a Bachelor's
degree or equivalent in a field relating to the work to be
performed. The foreign national must have the requisite degree,
foreign equivalent, or equivalent based on work experience,
or a combination of education and experience.
The H-1B visa is valid for an initial period of three years
with a maximum stay of six years. Dependents (spouses and
children under age 21) may obtain H-4 dependent visas. They
may stay in the U.S. for the same period of time as the principal
applicant, but they may not work. Under the new law, 195,000
H-1B visas are to be made available each year for the next
three years. (Without this change, there would have been only
107,500 H-1B visas to give out this year.)
Another welcome change is the new "portability" provision
in the law. According to this new provision, if a U.S. company
files an H-1B visa petition for a prospective employee who
is already employed in the U.S. in H-1B visa status with a
different employer, the individual may join the company immediately
after the petition has been filed. Until this change, employers
and their prospective employees had to wait until the INS
approved the H-1B visa petition before the new employee could
begin work. This provision does not allow people in other
visas statuses (besides H-1B) to change jobs without waiting
for the INS approval.
A less welcome change is that the INS filing fee for an H-1B
visa petition is going up in December, 2000 from $610 to $1,110.
The H-1B visa is the work visa of choice for most U.S. companies
and the above-referenced changes make the visa category even
more attractive. Even with the filing fee increase, it is
likely that U.S. companies will file record numbers of H-1B
visa petitions this year.
By Susan J. Cohen, Esq., Manager, Immigration Law Department
at Mintz Levin Cohn Ferris Glovsky & Popeo, P.C.
If you have questions, please e-mail Susan