The American Competitiveness in the 21st Century Act (AC21) was an act passed by the government of the United States in October 2000, pertaining to immigration to the United States. It was a complement to the American Competitiveness and Workforce Improvement Act that had been passed in 1998. The focus of AC21 was to change rules related to portability and caps for the H-1B visa to increase the effective number of visas available and make it easier for workers on those visas to switch jobs. Although the language of the Act references the Immigration and Naturalization Service (INS), the INS would soon be restructured and the functions of the INS referenced in AC21 would be handled by United States Citizenship and Immigration Services.
History
A first version of the Act was passed by the United States Senate on January 24, 2000. Amendments were reported on February 9 and April 11 of the same year. The bill became law upon being signed by Bill Clinton, the President of the United States at the time, on October 17, 2000.
The USCIS has issued memoranda and guidance regarding provisions in AC21 that have helped clarify the provisions and how these will be enforced, in 2001, 2003, 2005, and 2008.
Provisions
In summary, the provisions of AC21 did the following:
They helped increase the efficiency of utilization both of the H-1B status for temporary skilled workers (i.e., "non-immigrant workers") acquired by filing Form I-129, as well as the employment-based immigrant categories for immigration (EB-1, EB-2, and EB-3, acquired through Form I-140), thereby increasing the number of people who at a given time could be in that status. Methods to do this included making unused slots or revoked petitions return to the pool, making transfers from one job to another possible without having them count towards the numerical limits, and exempting research institutions from the numerical caps on H-1B visas. They recognized the fact that the H-1B status was often used by workers eligible for an employment-based category but who had not yet received it either because their Form I-140 petition was stuck, or because they were waiting for their Priority Date to become current, or because their Form I-485 application for Adjustment of Status was taking a long time. To accommodate this reality, it provided for people to extend their H-1B status (without having the extensions count toward limits). They changed the way the fees generated from H-1B were used, so as to address the issue of shortages of skilled labor within the United States.
Section 102: Temporary increase in visa allotments
At the time that AC21 was passed, there was a huge backlog in H-1B visa applications. The act sought to increase to 195,000 the caps for fiscal years 2001 to 2003 and retroactively raise the caps for 1999 (to include all cases approved after the cap was raised and before October 1, 2000) and for 2000 (to include all cases filed after the cap was reached and before September 1, 2000).
This temporary increase was not extended 2004 onward. However, the H-1B Visa Reform Act of 2004 made a more long-term but weaker increase in the number of H-1B slots: specifically, the first 20,000 applicants with master's degrees would be exempt from the cap of 65,000.
Section 103: Special rules for universities and research facilities
This section introduced what has now become known as the "uncapped H-1B". Prior to AC21, all H-1B visas were counted towards the annual cap. Section 103 provided that employees of higher educational institutions, nonprofit research organizations, and government research organizations would not be counted toward the H-1B cap.
An earlier version of AC21 had included all recipients of graduate degrees as eligible for uncapped H-1Bs, but the provision was removed from the final bill.
The section also specified that people whose current H-1B is on an uncapped visa will be counted toward the cap if they switch to a job that is subject to a cap (any job other than at a higher educational institution. nonprofit research organization, or government research organization).
The special rules for universities and research facilities were further expanded with the H-1B Visa Reform Act of 2004.
Section 103 continued: counting rules
Prior to AC21, if an individual filed a H-1B petition for a new job while already on a H-1B, the new petition was counted towards the annual cap. Now those who had already been counted towards a cap in the last six years were not counted towards the cap, and a person filing multiple petitions was counted towards the cap only once.