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