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Analysis of The American Competitiveness in the 21st Century Act (AC21)

The following is an analysis by AILA of The American Competitiveness in the 21st Century Act (AC21), a law regarding immigration of people with H-1B visas, including the numerical cap, post-6th year extensions and the 180-day portability.

Disclaimer:  This summary should not be a substitute for reading and analyzing the full text of the law, and should not be relied upon to provide legal advice to clients.

TITLE I –AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY

SECTION 101. SHORT TITLE

This title may be cited as the “American Competitiveness in the Twenty-first Century Act of 2000”

SECTION 102. TEMPORARY INCREASE IN VISA ALLOTMENTS

(a)     Increase the Cap for Fiscal Years 2001 through 2003 to 195,000

(b)    The cap for FY1999 is retroactively raised to include all cases approved after the cap was reached and before October 1, 2000. The cap for FY2000 is retroactively raised to include all cases filed after the cap was reached and before September 1, 2000.

EFFECTIVE DATES: Cap increases are effective for the fiscal years specified. Backlog clear outs for FY1999 and FY2000 are effective as if included in the American Competitiveness and Workforce Improvement Act (ACWIA).

Analysis: This section significantly increases the H-1B cap, and, by clearing out the pending case backlog carried over to the current years’ cap from past years, ensures that the full 195,000 visas are available in FY2001.

SECTION 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES

Note: The inclusion of “Graduate Degree Recipients” in the title of this section is a drafting error. The final amendment removed the exemption from the cap for graduate degree recipients, but was inadvertently left in the title.

  • Provides that employees of higher education institutions, nonprofit research organization and government research organizations are not to be counted toward the H-1B cap.
  • H-1B nonimmigrants that leave one of these employers to work for an employer not exempt from the cap will be counted toward the cap in the year in which they change jobs.
  • Provides that H-1B nonimmigrants who have already been counted toward a cap in the six years prior to the filing of a new petition, are not to be counted again unless they are eligible for a full six years of authorized admission under Section 214(g)(4) at the time of filing. Provides that where multiple petitions are filed for a single individual, that individual is only to be counted once toward the cap.

EFFECTIVE DATE: No separate effective date specified; effective upon date of enactment.

Analysis:  Higher education associations estimate their H-1B usage at between 6,000-10,000 visas each year, so their exemption from the cap will free up that many visas. The counting rule will overrule current INS practice of counting H-1B nonimmigrants against the cap if they are outside of the United States at the time of filing, regardless of whether or not they had held H-1B status prior to their departure. It will also require INS to develop a method to ensure that multiple petitions on behalf of an individual do not result in multiple visas being counted against the cap. Currently, INS does not have a reliable method to back out multiple petitions for a single individual.

SECTION 104. LIMITATION ON PER COUNTRY CEILING WITH RESPECT TO EMPLOYMENT-BASED IMMIGRANTS.

(a)                 Provides that if, in a calendar quarter, there are more visas available in all the employment-based preferences than the number of qualified immigrants who may be issued such visas, then the visas may be made available without regard to country of origin or the per-country ceilings.

(b)                Conforming amendments.

(c)                 H-1B nonimmigrants reaching the six-year limit on their stay who are the beneficiaries of pending or approved I-140s and who are subject to the per-country limits may receive extensions of H-1B status until decisions are reached on their adjustment of status applications.

EFFECTIVE DATE:  No separate effective date specified; effective upon date of enactment.

Analysis:  This provision helps nationals of India and China who are oversubscribed in the Employment-based first, second or third preferences, allowing unused visas to “spill over” to them, most likely making their priority dates current. If all “unused” visas are used in this manner before the last quarter of the fiscal year, there may be cut-off dates established. Allows individuals in H-1B status who are running out of time in that status while waiting for their priority date to become current, to obtain an extension of H-1B status until they can file for their adjustment of status and their case is adjudicated.

SECTION 105. INCREASED PORTABILITY OF H-1B STATUS.

Allows persons previously issued a visa or otherwise provided H-1B status to accept new employment upon the filing of a new petition by a new employer, subject to the final approval of the petition. If the petition is denied, work authorization ceases. In order to be eligible for this provision, the individual must have been lawfully admitted to the United States, the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General and the individual must not have been employed without authorization in the United States before the filing of such petition.

EFFECTIVE DATE:    Applies to petitions filed before, on, or after the date of enactment.

Analysis: This provision will ameliorate the problems H-1B nonimmigrants and employers experience due to delays in INS’ change of employer petition processing. It allows the beneficiary to change jobs immediately when the new employer files a new petition. Because the provision is effective for petitions filed before, on or after the date of enactment, it could result in reinstatement for some individuals whom the INS had previously denied H-1B status for a new employer based on working too soon for the new employer..

SECTION 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.

  • Allows H-1B nonimmigrants with pending I-140s to extend their status beyond the six-year limit if 365 days or more have passed since the original filing date of their labor certification applications or their I-140 filing date. The extensions shall be granted in one-year increments until a final decision is reached on their permanent residence.
  • Allows employment-based adjustment of status applicants (from any nonimmigrant status) whose I-485s have been pending for 180 days or more to change jobs or employers without invalidating the underlying I-140 or labor certification, as long as the new job is in the same or a similar occupational classification as the one for which the petition was filed.
  • Provides that unused employment-based immigrant visas from FY1999 and FY2000 are to be placed in a “bank” for use in future years when the demand for employment-based immigrant visas in EB-1, 2, and 3 categories exceeds the annual quota. A special construction provision provides that this section will not affect the “spill up” of unused visas to the family-based categories for FY1999 or FY2000.

EFFECTIVE DATE:    No separate effective date specified; effective upon enactment.

Analysis:  These provisions will alleviate some of the hardships faced by foreign nationals in H-1B status and other statuses due to extreme delays in DOL and INS processing of labor certifications, immigrant visas, and adjustment of status applications. The bill will also ensure that employment-based visas that go unused because of INS delays do not “disappear,” but remain available in future years, hopefully allowing for additional employment-based immigrants in future years.

SECTION 107. EXTENSION OF CERTAIN REQUIREMENTS AND AUTHORITIES THROUGH FISCAL YEAR 2002.

Extends the H-1B dependent attestations and additional Department of Labor investigative authority implemented in the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) through the years of the current cap increase, to October 1, 2003.

EFFECTIVE DATE:  No separate date specified; effective upon enactment.

Analysis:  The new attestations for H-1B dependent employers enacted in ACWIA were to go into effect when final implementing regulations were published and were to sunset on October 1, 2001. The Department of Labor and INS have never issued final regulations on those provisions, so they have never gone into effect.  This section will extend those attestations through FY2003 to allow additional time for implementation. The section also extends the new authority granted to DOL by ACWIA to investigate H-1B employers without a complaint if they have “specific, credible evidence” that a violation has occurred. According to the Department of Labor in a recently released General Accounting Office report, they have not used this authority since it was enacted in 1998.

SECTION 108. RECOVERY OF VISAS USED FRAUDULENTLY.

Provides that if the INS revokes an H-1B petition because of fraud or willful misrepresentation, the H-1B number for that petition shall be added to the cap in the year in which the petition is revoked, regardless of when the petition was originally approved.

EFFECTIVE DATE:  Date of enactment

Analysis:  INS previously had not restored revocations to the cap unless they occurred in the same fiscal year as when the petition was originally approved. This provision will mandate that the INS change that practice.

SECTION 109. NSF STUDY AND REPORT ON THE “DIGITAL DIVIDE”

Requires that the National Science Foundation conduct a study of the divergence in access to high technology in the United States and report to Congress within 18 months of the date of enactment.

SECTION 110. MODIFICATION OF NONIMMIGRANT PETITIONER ACCOUNT PROVISIONS

Reallocates the funds collected from the $500 fee enacted in the American Competitiveness and Workforce Improvement Act (ACWIA) to:

  • The Department of Labor for demonstration projects and programs for technical skills training
  • Low-income scholarships for math, engineering or computer science degrees created in ACWIA. The amount of the scholarships is increased to up to $3,125 per year and the NSF may renew scholarships for up to 4 years.
  • The National Science Foundation for grants for K-12 science, math and technology education.
  • To the Department of Labor for LCA processing and enforcement activities

DOL and NSF are required to file reports with the House and Senate Judiciary Committees within one year of enactment on the performance of programs receiving H-1B Nonimmigrant Fee money and the number of individuals who have completed the training and entered the high-skills workforce through the programs.

NOTE:Another section of this Act (Section 113, below), revises the percentages of the fee that each of these programs will receive.

EFFECTIVE DATE:  Date of enactment.

Analysis:  This section was the result of long negotiations between Republican and Democratic Senators in an attempt improve the use of the funds generated from the H-1B fee for training and education of U.S. workers in high-tech fields, where the most urgent need is.

SECTION 111. DEMONSTRATION PROGRAMS AND PROJECTS TO PROVIDE TECHNICAL SKILLS TRAINING FOR WORKERS.

Amends the section of ACWIA that provides for DOL demonstration programs and projects that provide technical skills training for U.S. workers in an attempt to increase the pool of workers in the United States with the skills necessary to fill high-tech jobs. Training shall not necessarily be at the level of a baccalaureate degree, but preparation for workers at a broad range along the career ladder. 75% of the grants shall be to workforce investment boards or consortia of such boards in a region, to be decided in consultation with the Dept. of Commerce. 25% of the grants will go to partnerships of at least 2 businesses or a business-related nonprofit organization that represents more than one business, and may include any educational, labor, community organization or workforce investment board. 80% of grants will be for skills training in high technology, information technology, and biotechnology and no more than 20% to training workers for skills in other H-1B-type specialty occupations.

EFFECTIVE DATE:  Date of Enactment.

Analysis:  Critics charged that the programs DOL had been funding were not really aimed at the types of jobs filled by H-1B professionals and were not very successful. These changes are aimed at improving the programs.

SECTION 112. KIDS 2000 CRIME PREVENTION AND COMPUTER EDUCATION INITIATIVE.

Provides after-school technology grants to the Boys and Girls Clubs of America. Up to $20 million may be appropriated for FY2001-2006 to the Attorney General to fund grants under this program, such funds may come from the Violent Crime Control Trust Fund.

EFFECTIVE DATE: Date of enactment.

Analysis:  This Section enacts legislation introduced by Representative Sheila Jackson-Lee (D-TX) in the House and Senator Joseph Biden (D-DE) in the Senate relating to after school programs run by the Boys and Girls Clubs of America. Senator Biden added it to the Senate bill in the Judiciary Committee.

SECTION 113. USE OF FEES FOR DUTIES RELATING TO PETITIONS.

Changes the percentage allocation of the H-1B Nonimmigrant Petitioner fee to the following:

  • 55% for DOL training programs
  • 22% for NSF Scholarships
  • 15% to NSF for K-12 education programs
  • 4% to DOL for LCA processing and enforcement and;
  • 4% to Department of Justice and INS for H-1B case processing and processing complaints relating to the recruitment attestation of H-1B dependent employers.

EFFECTIVE DATE: Date of Enactment.

Analysis:  This section was the result of a last-minute request by INS for resources to deal with the additional workload they will face because of the provisions of this law. INS requested 4% of the fees, up from the current 1.5%, so the other percentages were adjusted downward to accommodate this request.

SECTION 114. EXCLUSION OF CERTAIN “J” NONIMMIGRANTS FROM NUMERICAL LIMITATIONS APPLICABLE TO “H-1B” NONIMMIGRANTS.

Provides that J-1 physicians who are beneficiaries of a Conrad 20 waiver of the two-year home residence requirement who change status to H-1B may be granted such a change without regard to the cap, and are not counted toward the cap. Unlike employees of higher educational institutions, these nonimmigrants are not later counted toward the cap, even if they later change employers or occupations.

EFFECTIVE DATE:  Date of Enactment.

Analysis:  Senator Kent Conrad (D-ND), the originator of the Conrad 20 waiver, offered this amendment and it was one of the last-minute additions to the bill.

SECTION 115. STUDY AND REPORT ON THE “DIGITAL DIVIDE.”

Requires the Commerce Department to conduct a review of existing public and private high-tech workforce training programs in the U.S. and report to Congress no later than 18 months after the date of enactment.

EFFECTIVE DATE: Date of Enactment.

SECTION 116. SEVERABILITY.

Provides that if any provision of this Title or any amendment made by the title is ruled invalid, then the remainder of the title and amendments shall not be affected.

EFFECTIVE DATE:  Two days after the date of enactment.

Analysis: Standard severability language, to insulate provisions from any future court determinations.

TITLE II – IMMIGRATION SERVICES AND INFRASTRUCTURE IMPROVMENTS

SECTION 201. SHORT TITLE

This title may be cited as the “Immigration Services and Infrastructure Improvement Act of 2000.”

SECTION 202. PURPOSES.

To provide mechanisms for the INS to eliminate the current backlog in the processing of immigrant benefit applications within one year after the date of enactment, and prevent the future building of backlogs and to provide for regular congressional oversight of the performance of the INS in eliminating the backlog and processing delays in immigration benefits adjudications.

Provides the “sense of Congress” that the processing of all immigrant benefit applications should be completed with 180 days of the initial filing, except for petitions under Section 214(c) of the Act (relating to H, L, O and P nonimmigrants) which should be adjudicated within 30 days.

EFFECTIVE DATE:  Date of enactment.

Analysis:  This section marks the first time Congress has stated its opinion as to how long immigration benefits petitions and applications should take to adjudicate. However the processing times are not mandates, and INS is not required to abide by this.

SECTION 203. DEFINITIONS

Defines the term “backlog” for the purposes of this Act as any period of time in excess of 180 days that an application or petition has been pending with the INS. Defines the term “immigration benefit application” as any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act.

EFFECTIVE DATE:  Date of enactment.

SECTION 204. IMMIGRATION SERVICES AND INFRASTRUCTURE IMPROVEMENT ACCOUNT.

Directs the Attorney General to take “such measures as may be necessary” to reduce the backlog in immigration benefit processing, with the goal of eliminating the backlog within one year of the date of enactment, and to make other improvements to ensure that a backlog does not develop after that date.

Creates a new Treasury account, the “Immigration Services and Infrastructure Improvement Account” to house appropriated funds to support the Attorney General’s mandate to reduce the backlog. Provides that any funds appropriated to this account may not be used until the INS has submitted a report on its plan to reduce the backlog to Congress (described in the next section).

EFFECTIVE DATE: Date of enactment.

Analysis:  This section does not give INS any mandates, but directs the INS to take steps to reduce the backlog with the objective of eliminating it within the year.  Further, this section does not actually give the INS any money. (Authorizing language is no guarantee that Congress will actually appropriate, that is grant, any funds.) It simply indicates the sense of Congress that money should be put to these purposes.

SECTION 205. REPORTS TO CONGRESS.

Requires the INS, within 90 days of the date of enactment, to submit a report to the House and Senate Judiciary Committees and the House and Senate Appropriations Committees about the backlogs in immigration benefit applications that exist on the date of enactment, and their plan for eliminating such backlogs. The report must include the following:

  • An assessment of the data systems used in adjudicating and reporting on the status of applications and petitions, including the adequacy of the existing technology systems to comply with the reporting requirements of this Act, and a plan for implementing improvements to the systems to eliminate the backlogs.
  • Description of the quality controls to be put into place to ensure “timely, fair, accurate, and complete processing and adjudication” of benefit applications.
  • Detailed breakouts of the processing of naturalization applications on a State-by-State basis, including aging reports on the cases pending, detailed breakouts on a District-by-District basis of the adjudication of most other types of benefit applications including the number of cases adjudicated in the each quarter of the year, the average processing time for such application, aging reports on the backlogs, estimates of the processing time for newly submitted applications, an analysis of the appropriate processing times for applications, and a description of the additional resources and process changes needed to eliminate the backlog for processing and adjudication.
  • The specific filings to be included in the report are: I-485 adjudications, petitions under Section 214 (I-129s), Petitions under Section 204 (I-130s and I-140s), asylum applications, and TPS registrations.

Provides that if Congress does not actually give INS the funds authorized under this Act, the AG must still submit the report to Congress, 90 days before the end of each fiscal year.

EFFECTIVE DATE:  Date of Enactment.

Analysis:  Will require the INS to provide its oversight and funding committees in Congress with detailed reports on the state of its adjudication of the most common types of filings, and requires INS to submit a plan for eliminating the backlogs. Congress does not have to approve the plan. Furthermore, INS has a very poor track record meeting its existing reporting obligations to Congress.

39H10031

Courtesy of the American Immigration Lawyers Association

 

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