Visas and the International Postdoc, Part 3: The American Competitiveness in the 21st Century Act

Thousands of postdoctoral trainees from foreign countries need to continue their research in the United States after their J-1, or "2-year foreign-scholar," visas expire. To do that, they frequently must obtain the H-1B nonimmigrant work visa from the U.S. Immigration and Naturalization Service (INS). This visa, which has a lifespan of 6 years, is usually easy to obtain, especially if the trainee's native country posts no objections and if the university agrees to hire her or him as an employee.

Until last year, however, the H-1B had some major deficiencies, related especially to the quota limits on the number of visiting researchers and professional workers allowed in the country. Too few H-1B visas were granted compared to the demand in the U.S. Another problem was that the H-1B visa was employer-specific. That is, an H-1B holder could not go to work for a new employer until the INS approved the new H-1B application for the new employer, a process that often took months.

Those problems, and others, ended last October with congressional passage of S. 2045, the American Competitiveness in the 21st Century Act, signed into law by President Clinton on October 17, 2000.

The act was designed mainly to help the information technology industry, which lobbied heavily for its passage. Some American labor unions and a handful of scientific and engineering groups opposed its passage. They were fearful that more modestly paid foreign-born professional workers would deprive Americans of jobs in high-tech industry. Many of these groups still believe the law discriminates against American workers.

However, most in the technical community backed the act because they were convinced that shortages in many fields of science and engineering were real, that foreign workers were paid as well as anyone, and that the economy would suffer unless more foreign professionals were let into the U.S. to work. There was considerable jubilation in the legal and high-tech communities when Clinton signed the legislation into law.

According to Akron, Ohio, immigration attorney Farhad Sethna, the new law "brings a breath of much needed fresh air to the adjustment-of-status nightmares of the H-1B." He says, "Given the American economy's tremendous growth, the act lays down what appears to be a solid foundation to continue that growth."

The law, which Congress will revisit again in 3 years, raises the quotas for H-1B visas for fiscal years 2001 through 2003 to 195,000. But of even more significance to the research community, it ends altogether quotas for scientists and engineers employed by universities, nonprofit organizations, and government research institutions. In other words, a university can hire as many postdocs as it wants without fear of illegally surpassing any quota. On the down side, the legislation raises the filing fee for the H-1B from $500 to $1100. But that fee applies to industrial employers, not to universities. They continue to pay their usual $110 fee.

About $101 million of the additional revenue collected from the fee increase goes toward a Labor Department program to retrain American workers for jobs that were filled by H-1B workers. Also, the National Science Foundation (NSF) receives $69 million for university scholarships to low-income students in math, engineering, and computer science and for K-12 education programs in math, science, and technology. In addition, NSF is directed to spend some of that $69 million for a study into the effects of the "digital divide," the term used to describe the lack of access to computers and the Internet by lower income individuals. The Commerce Department is also directed to do similar assessments.

Additionally, the new law also eliminates the employer-specific provision of the H-1B visas. A postdoc can now change jobs without suffering through the red tape and long delays in applying for transfer approval. Says Sethna, "Anyone already holding an H1-B visa can start working for the new employer immediately upon filing the petition [to transfer positions] with the INS."

Another issue--one that particularly pertains to the high-tech engineering community--has to do mainly with Chinese and Indian scientists. These two countries send more postdocs and technical workers to the U.S. than any other country. Their quotas always tended to run out during the first few weeks of any given year. The new law does away with country-specific quotas and makes them worldwide, almost fully opening the gates to Chinese and Indian scientists and engineers.

A further problem that the new law eliminates has to do with the transition period between the H1-B and the green card. Up to the time the law was signed, any H-1B holder applying for the green card was required to remain in his or her job until INS approved of the green card application. The wait usually lasted well over a year. Now, the applicant needs to wait no more than half a year. If the INS fails to approve the application for a green card within 180 days, the applicant can move to the new job anyway and continue to wait for approval there.

Sethna, who represents not only postdocs in the Akron-Cleveland area but also social science and humanities scholars, says the new law isn't ideal. "If I were to change the act," he says, "I would permanently increase the cap for technology workers. The new quotas run only through the next 3 years. I would also make mandatory a 15-day processing time for H-1B approval. Many, many postdocs whom I represent told me that their employers simply won't wait the 3 months for their H-1B. They have a project to complete under a deadline or a grant to fulfill and they've got to get someone right away."

Immigration officials contacted by Next Wave at the University of Washington, Princeton, and Duke all agreed that the lifting of the quotas will be a boon to graduate education and postdoc training at the research universities. "The big thing about the act," says Sethna, "is that it takes away a lot of the anxiety over the postdoc's immigration status as he or she moves toward the permanent visa, or green card."

We want your feedback!

This article is the third in our series entitled Visas and the International Postdoc and we want to know what you think. Did you find the articles helpful in understanding the visa options for foreign national scientists? Or what topics would you like us to cover that we have missed? E-mail the Postdoc Network at with your thoughts and suggestions!

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