Foreign Temporary Workers


The H1-B visa, also known as the “working visa,” is utilized by employers to petition professionals and those with special expertise. Every year thousands of foreign nationals come to the United States to work under this visa category. The H1-B visa is valid for up to three years and can be extended for an additional three years. Under certain circumstances a one-year extension after the six years may be available.

A recent study by the Immigration and Naturalization Service shows that employers of all sizes and locations use the H1-B visa to recruit and employ foreign professionals.

In 2000, Congress expanded the H1-B visa by passing the American Competitiveness in the Twenty-first Century Act of 2000 (“AC 21”). The most notable aspects of AC 21 were the availability of more H1-B visas and their portability. Under AC 21, the annual cap on H1-B visas increased to 195,000 for each of fiscal years 2001, 2002, and 2003. Additionally, certain types of H1-B visas, such as those filed by institutions of higher education and nonprofit organizations, physicians, with Conrad 20 waivers of the J-1 two-year home residence requirement, and revoked or renewed visas do not count towards the quota. The “fresh start” provision automatically increased the quotas for fiscal years 1999 and 2000 to whatever was needed to ensure that sufficient visas are available and prevent carryover of petitions from previous years.

The portability provisions of AC 21 allow H1-B employers to hire and employees to accept new employment upon the filing of the petition by the prospective employer provided that they were previously issued an H1-B visa and have not been employed without authorization. The employment authorization will continue until the new petition is adjudicated. This provision applies retroactively, meaning to all H1-B’s filed before, on, or after the enactment of AC 21.

Moreover, AC 21 provides for increased job flexibility by allowing employment-based adjustment (green card) applicants to change jobs. The adjustment applicant may change jobs or employers without invalidating the underlying petition for immigrant worker or labor certification if the adjustment application has been pending for more than 180 days and as long as the new job is in the same or similar occupational classification as the one which the petition was filed or certification issued.

The H1-B visa and AC 21 promote U.S. economic growth and preeminence by attracting talent from abroad. As economies become more globalized and interdependent, those that can produce or attract highly skilled employees will prosper. The H1-B visa program is integral to the economic well being of the United States and its businesses.

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