INS GUIDANCE ON AC21 PENDING REGULATIONS
On June 19, 2001, BCIS issued guidance on the American Competitiveness in the Twenty-First Century Act. BCIS has yet to promulgate regulations, and in the interim, the Executive Associate Commissioner has asked field offices to follow the interim procedures outlined in this memo. |
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| I. |
EFFECTIVE DATES:
All provisions of AC21 are effective upon date of enactment, October 17, 2000. |
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| II. |
AC21 ß103 AND ß114 - EXEMPTIONS FROM THE H-1B FISCAL YEAR CAP |
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The following beneficiaries are exempt from the cap: |
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a) J-1s receiving graduate medical education who have obtained waiver of 2-year residency requirement. |
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b) Beneficiaries with positions or offers from institution of higher education. |
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c) Beneficiaries with positions or offers from non-profit research organizations. |
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d) Beneficiaries with positions or offers from governmental research organizations. |
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e) Beneficiaries who currently maintain or have held H-1B status within the last six years, and are ineligible for another six-year stay |
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f) Beneficiaries who have been counted once toward the numerical limit. |
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| III. |
AC21 AND 104(C) EXTENSION OF H-1B STATUS |
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Non-immigrants may obtain extension beyond six-year maximum H stay until a decision is made on an adjustment application if: |
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a) H-1B has an approved I-140, AND |
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b) H-1B is eligible for adjustment status but for per-country limitations. |
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c) Dependents are eligible for the extension as well. |
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| IV. |
AC21 &105, VISA PORTABILITY |
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In view of the language of section 105, BCIS expects to propose a rule that would allow H-1B workers a reasonable period of time after leaving the employ of her/his initial H-1B petitioner to begin work with a subsequent H-1B employer. In the guidance memo, the Service gives 60 days as such reasonable time. The Service cautions, however, that this statement is merely informational, and BCIS is not obliged to honor it. |
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| V. |
AC21 & 106(C) LENGTHY ADJUDICATIONS |
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An Alien with an approved I-140 may change jobs and leave the sponsoring employer if: |
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a) Form I-485 has been filed and remains unadjudicated for 180 days or more, AND |
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b) The new job is in the same or similar occupational classification as job for which the I-140 was approved. |
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| VI. |
PUBLIC LAW 106-396 |
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Amended H-1Bs are NOT required for petitioning employers involved in certain types of restructuring, as follows: |
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a) New corporate entity succeeds to interests and obligations of original petitioning employer, AND |
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b) Terms and conditions of employment remain the same, except for petitioner identity. |
