INS announces H-1B cap reached for FY 2000; describes new H-1B procedures

As indicated in our last newsletter, the Immigration and Naturalization Service (INS) has announced that the 115,000 annual cap on H-1B workers for fiscal year (FY) 2000 will be reached based on petitions already filed.  The INS estimates that it reached the cap about February 29, 2000.

The INS has now stated the procedures it will follow for the rest of this fiscal year (ending September 30, 2000):

Petitions received before March 21, 2000 will continue to be adjudicated subject to the FY2000 cap.  Once the remaining FY2000 numbers are exhausted, INS will automatically change the "valid start date" on remaining approvable petitions to October 1, 2000, and will count them against the 107,500 cap for FY2001.  If the petitioner or beneficiary does not want an October 1 start date, they can ask the INS to withdraw or revoke the petition, but they will not receive a refund of the $610 filing fee.

The INS has not said how long it will take to approve pending H-1B petitions that are converted to an October 1 start date.  If last year is any indication, the INS may not approve such cases until late summer.  New H-1B petitions can be filed requesting an October 1 start date. 

These procedures do not affect INS processing of H-1B petitions that are not subject to the annual cap.  Such petitions include applications to:

-- Extend the stay for current H-1B workers;

-- Amend the terms of employment for current H-1B workers;

-- Allow current H-1B workers to change employers; and

-- Allow current H-1B workers to work concurrently in a second H-1B position.

The INS also announced an interim regulation to accommodate certain foreign students (F-1s) and exchange visitors (J-1s) who are already in the country awaiting approval of an H-1B petition filed on their behalf.  This interim regulation extends the authorized stay of such individuals (and their dependents) to allow them to remain legally in the United States until the INS adjudicates their petition.  If the INS approves the petitions, their authorized stay is extended to October 1, at which time their petitions become valid and they will change to H-1B status.  If the INS denies a petition, however, that applicant's authorized stay is terminated and he or she must depart.  F-1s and J-1s whose authorized stay has been extended under this regulation are not permitted to work or engage in any other activity that would be in violation of their F or J immigration status.  This is the same procedure the INS followed last summer when the H-1B cap hit, except that the new INS notice states that F-1s and J-1s may accept a signing bonus before the H-1B petition is approved!

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That’s it for this issue. For answers to any of your immigration questions, contact Hilary Fraser (htf@millermayer.com), Rosie Mayer (rma@millermayer.com), or Steve Yale-Loehr (syl@millermayer.com) at True, Walsh & Miller.