Related Practices

• Immigration

The close of the 106th Congress saw a flurry of legislation which amended the Immigration and Nationality Act (the “INA”).  In total, no fewer than ten separate pieces of legislation were passsed by Congress and signed into law by the President.  As briefly discussed bellow, the legislation affects, among others, H-1B visa holders, applicants for green cards who are in a process known as an adjustment of status, children born to U.S. citizens abroad, and religious workers.

First, with respect to H-1B legislation, the American Competitiveness in the 21st Century Act included a number of provisions relating to H-1B visa holders and those individuals seeking a green card who are in the adjustment of status process:

• An increase in the number of H-1B visas to 195,000 for each of the next three fiscal years
• Elimination of the H-1B “backlog” so that a full 195,000 visas were available as of October 1, 2000
• Exemption from the H-1B visa “cap” for individuals employed at higher educational institutions or their related or affiliated non-profit entities, non-profit research organizations or governmental research organizations
• Amelioration of the per-country limits for employment based immigrants (particularly applicable to Chinese and Indian nationals) by allowing unused visas to spill over to over-subscribed countries
• “Portability” for H-1B nonimmigrant by allowing them to change jobs upon the filing (as opposed to the approval) of a new H-1B petition
• Subject to INS regulations (which, as of this writing, have not yet been issued), allowing a change of job or employer for an adjustment of status applicant after his or her case has been pending for more than 180 days without avoiding the underlying I-140 or labor certification application (as opposed to the current practice of requiring these employees to remain in their same positions until the adjustment of status application has been approved)
• Recapture of unused employment-based visas
• Also subject to upcoming regulations, extension of status beyond six years for H-1B nonimmigrant who have an approved immigrant visa petition and are awaiting green cards (and, more specifically, whose I-140 petitions have been pending for at least 365 days

Second, a separate piece of legislation states that amended H-1B visa petitions are not required where a new corporate entity succeeds to the interests and obligations of the original employer and where the terms and conditions of the employment remain the same.

That same legislation also increased the “training fee” paid in conjunction with the filing of an H-1B visa from $500 to $1,000.  The provision went into effect 60 days from the date of enactment of the legislation, or on December 17, 2000.  As a result, H-1B petitions received on or after that date will require a filing fee of $110, as well as the “training fee” of $1,000, for a total of $1,110 in fees.  Certain limited exceptions to the increased fee are available.

Third, the Visa Waiver Permanent Program Act permanently extended what was formerly known as the Visa Waiver Pilot Program.  Pursuant to this program, individuals from countries designated by the INS as having a low incidence of fraud with respect to immigration matters are eligible to enter the United States without a visa for up to 90 days.  That program is now a permanent part of U.S. immigration law.  A separate provision of that Act extended the Employment Based Fifth Preference Immigrant Visa Pilot Program, pursuant to which alien investors in the United States may obtain green cards based upon their investment.

Fourth, on October 30, 2000, President Clinton signed into law an amendment to the INA which makes it easier for children born to at least on U.S. citizen parent abroad to acquire citizenship.  The law grants automatic citizenship to any foreign-born child when at least one parent is a citizen, the child is under 18 and the child is residing in the U.S. in the legal and physical custody of the citizen parent pursuant to lawful permanent residence.  Please note that citizenship may still be available under other avenues to children born abroad to at least one U.S. citizen parent.

Last, on October 31, 2000, the President signed into law a three-year extension of the Religious Worker Program.  The law provides several nonimmigrant visa options for religious workers, and also allows for such individuals to pursue permanent residence status (the “green card”) under a category specifically available to those individuals.

For further information regarding any of the laws discussed above or any other immigration matter, please contact any member of the Cohen & Grigsby Immigration Group.