November 5, 2002 - On November 2, 2002, President Bush signed into law the "21st Century Department of Justice Appropriations Authorization Act," Public Law 107-273. This law contains immigration provisions dealing with H-1B status, J-1 physician waivers and certain immigrant entrepreneurs.

One of the most significant provisions of the new law for employers of foreign workers is the provision that amends the American Competitiveness in the 21st Century Act, known as "AC-21." Under AC-21, passed in the fall of 2000, H-1B workers who were the beneficiaries of pending or approved employment-based immigrant visa petitions (I-140's) could obtain extensions of their H-1B status past the sixth year of such status, if their immigrant visa petitions or alien labor certifications had been filed 365 days ago or more. Because of the way that AC-21 was drafted, for those employment-based cases requiring labor certification approval, approval of the labor certification and filing of the I-140 petition was an absolute prerequisite to qualification for the 7th year extension. This created a great deal of pressure for H-1B workers facing a dwindling amount of time remaining in H-1B status, while their labor certifications remained stuck in a Department of Labor logjam. In many parts of the country it is taking 18 months to two years to secure approval of an application for alien labor certification. Employers of such H-1B workers faced the prospect of losing valuable workers at the end of the six years of H-1B time because of Department of labor processing backlogs.

The 21st Century Department of Justice Appropriations Authorization Act signed by the President is meant to correct this problem. The law allows H-1B workers who have labor certifications that were filed a year ago or more to gain extensions past the 6th year of H-1B status, in one year increments. The law removes AC-21's requirement of a pending immigrant visa petition. In other words, as long as 365 days or more have elapsed since the filing of any alien labor certification application on behalf of the H-1B worker, or used by the H-1B worker, the worker is entitled to the extension.

The H-1B worker is entitled to continuing extensions, in one-year increments until and unless the labor certification is denied. Extensions can continue after the labor certification is granted and an I-140 petition is filed on behalf of the H-1B worker.

The law also states that the H-1B extensions may be granted even if the H-1B worker has changed his or her status or left the country. In other words, if the worker previously held H-1B status and is entitled to additional time in H-1B status under the provisions of this law, he or she may apply for H-1B status even if he or she is outside the U.S., or now holds a different visa status.

The new law appears to allow H-1B extensions for foreign nationals who have been "substituted" into a labor certification that has been pending for the required period of time. The law also appears to allow an H-1B extension to be based on a labor certification filed by, or granted to, a prior employer. However, the Immigration and Naturalization Service (INS) is currently working on a Guidance Memo interpreting the law. This memo will be issued within the next few weeks and should offer an insight into whether the INS will interpret the law in a generous fashion.

As mentioned above, the new law also affects J-1 physicians and certain immigrant entrepreneurs. Should you have an interest in these provisions, please contact a BAL attorney for more information