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New law and regulations increase ability to hire foreign workers 02-21-01
- By Ann F. Kiernan, Esq.

Last year, Oracle, Cisco and Sun all made a Top 20 List! No, not David Letterman's, but the Government's list of companies hiring foreign "specialty workers". Nationally, high-tech companies are the leading employers of such workers, especially systems analysts and programmers. These professional employees usually must have an H-1B visa to be legally employed.

But H-1B visas have been in short supply, leaving not only the technology industry but universities, medical facilities, and other employers of foreign professionals scrambling to find qualified people to fill essential jobs. Last year, the annual H-1B visa cap was reached after only five months.

A new law, the American Competitiveness in the Twenty-First Century Act of 2000, (AC21) and new regulations, which became effective January 19, 2001, have substantially increased the annual cap (from 115,000 to 195,000), and have eased prior restrictions on H-1B workers, allowing them more flexibility to compete in the American labor market.

One crucial provision of AC21 is portability. Until now, an H-1B employee who wanted to change jobs had to wait for months while the Immigration and Naturalization Service (INS) processed and approved a new H-1B petition from the new employer. But under AC21, an H-1B worker can start a new job as soon as the new employer files the petition. The new law also allows an H-1B employee who has applied for permanent residence (commonly known as a "green card") to take a new job in the same field six months after filing the green card application with the INS. Under the old law, the worker had to wait until the green card was issued, a process that could take up to three years.

While these changes make it harder for U.S. employers to retain these newly-mobile workers, they also make it easier for foreign professionals to change jobs, and enable U.S. employers to hire more of them and to bring them on board quickly.

What you should do: While it is perfectly legal to ask an applicant about his/her visa status, check with your HR Department first about the preferred procedure at your company.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
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