IMPACT
OF THE AMERICAN COMPETITIVENESS
IN THE 21ST CENTURY ACT OF 2000
In October 2000, the American Competitiveness in the 21st Century Act of 2000 was enacted. This law, which is commonly referred to as AC21, significantly benefits both employers and foreign workers. Some of the more important provisions of AC21 are as follows:
H-1B Cap. AC21 provides relief to employers who found it difficult, if not impossible, to obtain H-1B visas for foreign workers due to the annual limit for such visas. AC21 increases the annual limit of H-1B visas to 195,000 for FY 2001, 2002 and 2003. After FY 2003, the cap is set at 65,000. In addition to increasing the cap, AC21 also exempts several new categories of H-1B workers from the cap.
H-1B Portability. AC21 substantially changes the law by permitting an alien in H-1B status to begin employment with a new employer once that employer has filed a new, "non-frivolous" petition (Form I-129, Petition for Nonimmigrant Worker) with the INS. Under the prior law, the alien could not begin employment with the new employer until the INS approved the petition filed by the new employer on behalf of the worker. This portability provision, which permits an H-1B worker to change employers more quickly, applies to petitions filed before, on, or after October 17, 2000.
Extensions Beyond Six Years. Under the prior law, an alien worker could only remain in H-1B status for a maximum period of six years. AC21 permits the INS to grant extensions beyond six years, in one year increments, for some aliens who are pursuing permanent resident status. To take advantage of the new law, the following requirements must be met: (1) the labor certification process must be completed; (2) the employer must have filed an I-140 (Petition for Immigrant Worker) on the alien’s behalf; and (3) more than 365 days must have passed since the Form I-140 or the labor certification application has been filed. The INS will permit subsequent extensions until a decision is made on the alien’s lawful permanent residence.
Filing Fee for H-1B Petitions. Although the standard INS filing fee for H-1B petitions ($110) has not been changed as a result of AC21, a companion bill to AC21 raised the education and training fee for H-1B petitions to $1,000, effective December 17, 2000. Thus, the total fee which an employer must pay upon filing an H-1B petition is now $1,110.