In our last update, dated 12/17/99, we explained that the H-1B cap will again be reached during this fiscal year of the US. The question . When?
There are some additional developments as well as many rumors. Here are some facts.
First, INS retained KPMG to audit both the methods used in counting visas against the H-1B cap, as well as to perform their own count. INS has announced that it will not publicly release any date on H-1B usage until KPMG has issued its preliminary report, which is due early this year.
Second, Senator Spencer Abraham (R-MI), who is chair of the Senate.s Immigration Subcommittee, has sent a letter to Janet Reno raising questions about the likelihood that INS has been overcounting H-1B visas subject to the annual cap. This happens because INS is unsure about which visas count against the cap, and their count is inconsistent. Hopefully, this information will be added to the audit that is underway and corrective action will be suggested in the KPMG report.
Third, several pieces of legislation have been introduced in Congress to deal with the H cap. Most would exempt certain visas from the cap, and would increase the cap by 40,000 to 50,000 for those that remain subject to it.
Finally, a .reliable source. at the INS said just last week that the cap may not be reached until March, 2000, meaning that cases filed by March have a good likelihood of being successfully processed this year. However, since INS is still analyzing its numbers, it is difficult to suggest that clients rely on this information in making plans for recruiting and hiring.
The backlog at all of the Service Centers continues. Both Vermont and Nebraska are currently processing cases received in early November, meaning that they are taking 8 to 10 weeks, or more, to do what Vermont had been doing in 3 weeks just a short time ago. California and Texas are further behind. Unfortunately, cases that are not subject to the cap, such as change of employer cases, are caught up in the backlogs at the present time.
As usual, once the cap is reached, no new approvals can be issued with effective dates before 10/1/2000.
We will continue to provide updates as reliable information becomes available. Please contact us to ask questions or to discuss any particular situation that may arise in your company or institution:
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require and further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative.