Petitioning Requirements for the H-1B Nonimmigrant ClassificationUnder Public Law 105-277 [65 FR 10678] [FR9-00]

DOCUMENT NUMBER: FR9-00

FEDERAL REGISTER CITE: 65 FR 10678

DATE OF PUBLICATION: February 29, 2000

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 214, and 299

[INS 1962-98]

RIN 1115-AF31

Petitioning Requirements for the H-1B Nonimmigrant ClassificationUnder Public Law 105-277

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This final rule adopts with amendments the interim rule that was published by the Immigration and Naturalization Service (Service)on November 30, 1998. The interim rule implemented certain provisions of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) by amending the Service's regulations to: Reflect an additional $500 filing fee for certain H-1B petitions filed on or after December 1, 1998, describe the organizations that are exempt from the new fee requirements, and reflect the new annual numerical limits on H-1B classifications.

This final rule discusses the comments received in response to the interim rule and adopts as final the regulatory amendments contained in the interim rule. In addition, this final rule serves as public notice that Form I-129W, “H-1B Data Collection and Filing Fee Exemption,” has been revised and approved for use following the Service's request for emergency approval that was published in the Federal Register on October 7, 1999 at 64 FR 54646.

DATES: This final rule is effective March 30, 2000. On March 30, 2000, revised Form I-129W must be filed concurrently with all H-1B petitions.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone (202) 353-8177.

SUPPLEMENTARY INFORMATION:

Background

What Is an H-1B Nonimmigrant Alien?

An H-1B nonimmigrant is an alien employed in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation is an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty as a minimum for admission into the United States.

How Does ACWIA Affect the H-1B Nonimmigrant Classification?

On October 21, 1998, President Clinton signed the ACWIA into law, Public Law 105-277, Div. C, Title IV, 112 Stat. 2681-641. The legislation amended and created several statutory provisions relating to the H-1B nonimmigrant classification. These amendments include, among others:

(1) Revisions to the attestation requirements for labor condition applications (LCA) under section 212(n) of the Immigration and Nationality Act (Act);

(2) Definitions of violations of LCA conditions and new penalties for such violations;

(3) Amendments to prevailing wage computations for academic and research organizations; and

(4) Data collection and reporting requirements.

Did the Service Publish a Rule Prior to Issuing This Final Rule?

On November 30, 1998, the Service published an interim rule in the Federal Register (FR), at 63 FR 65657 that implemented only the provisions of section 414(a) and 415(a) of the ACWIA. Specifically, the regulation addressed the new fee for United States employers filing petitions for H-1B nonimmigrant aliens and described the organizations that are exempt from filing this new fee. The interim rule also revised the Service’s regulation at § 214.2(h)(8)(i)(A) to reflect an increase in the annual limitation on the number of aliens that can be granted an H-1B visa or accorded H-1B status. Written comments were to be received on or before January 29, 1999. The Service received eight comments from individuals and organizations in response to the interim rule.

What Specific Provisions of the ACWIA Were Contained in the Interim Rule?

Section 414(a) of the ACWIA provides that United States employers must pay the $500 filing fee when they file H-1B petitions on or after December 1, 1999 and before October 1, 2001, for the following purposes;

(1) An initial grant of H-1B status under section 101(a)(15)(H)(i)(b) of the Act;

(2) An extension of stay for individuals currently in H-1B status (unless the employer previously has obtained an extension for such alien); or

(3) Authorization for a change in employers for aliens currently in H-1B status.

Section 415 of the ACWIA also creates a number of exemptions to the filing of the $500 fee. The organizations exempt from paying the $500 fee are:

· Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, or related or affiliated nonprofit entities; and

· Nonprofit research organizations or Governmental research organizations.

The Service proposed definitions for the terms “nonprofit” and “research” and the phrase “related or affiliated.” In drafting these definitions the Service drew on generally accepted definitions of the terms as well as definitions contained in the regulations of the Internal Revenue Service and the Small Business Administration.

In addition, the Service created Form I-129W, now called the “H-1B Data Collection and Filing Fee Exemption,” to be filed along with the petition in order for petitioners to be better able to determine if they were exempt from the $500 filing fee. The form also allows the Service to record information on employers that qualify for the exemption, and to collect data for the quarterly congressional reports required by section 416(c) of the ACWIA.

What Is the Purpose of This Final Rule?

This rule discusses the eight comments that were received and the Service's responses to the comments. Many of the commenters addressed more than one issue in their comment. As a result, the number of issues discussed exceeds the actual number of comments received. This rule also draws on the Service's experience in implementing these changes since publication of the interim rule and incorporates a number of streamlined practices based on that experience.

The comments that the Service received came from a variety of sources. They ranged from a single individual to an organization representing thousands of companies. The 8 comments were from the following:

· A non-profit social service agency;

· A national laboratory;

· An organization that represents a large number of attorneys and law professors;

· An organization representing a coalition of more than 90 organizations that advocate immigrant and refugee rights;

· A private immigration attorney;

· A group of organizations that represent a number of public and private higher education institutions as well as a large number of independent nonprofit scientific research organizations;

· A trade organization that represents over 11,000 companies in the information technology industry;

· Two organizations representing approximately 30 corporate and institutional members with an interest in the international movement of personnel and a broad-based industrial trade association.