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Congress Eases Restrictions on Hiring H-1B Visa Holders and Imposes New Requirements

  • February 5, 2001

The new American Competitiveness in the Twenty-First Century Act includes a number of provisions which make it easier for an employer to hire an H-1B visa holder. It also has raised the cap on H-1B visas through FY2003 to 195,000 visas per year. At the same time, the special "H-1B training fee" which must accompany new H-1B visa petitions, was raised from $500 to $1000 per petition.

Implementing another new immigration law, the U.S. Department of Labor has published interim regulations for new H-1B visa provisions under the American Competitiveness and Workforce Improvement Act. The new regulations require all H-1B employers to comply by doing the following:

  • Offer benefits to H-1B workers on the same basis as offered to their U.S. workers;
  • Pay full wages to any H-1B worker placed in a non-productive status by the employer;
  • Comply with the various "whistleblower" provisions that protect employees -including former employees and applicants - who disclose information about potential violations or cooperate in an investigation or proceeding; and
  • Refrain from requiring an H-1B worker to pay the employer's H-1B petition filing fees or imposing a penalty for the H-1B worker's early termination of employment.

The new H-1B regulations also address the following:

  • Use of electronic notification as an alternative method of notifying U.S. workers that the employer intends to employ H-1B nonimmigrant workers;
  • Changes in civil money and other penalties for H-1B violations;
  • Special rules applicable to H-1B academic pay, prevailing wage computations, and DOL investigations;
  • The short-term placement of H-1B workers not covered by an LCA; and,
  • The new H-1B Labor Condition Application (Form ETA 9035) and processing system.

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