H-1B Update #3: The H Cap Is Approaching

The INS is now very close to reaching the H-1B cap for this fiscal year, according to an INS official. Although INS had earlier announced that it would issue a Federal Register notice when it was within 30 days of reaching the cap, they are now saying they will not do this. They will simply announce that petitions processed, together with those on hand in the Service Centers, will exhaust the limit of 115,000.

Once the notice is issued that the cap has been reached, no more petitions will be accepted for the current fiscal year. They can be processed, however, with an effective date of October 1, 2000. Interim policies are expected to be similar to last year for those in F-1, J-1 or other Duration of Status positions.

INS will accept petitions without approved LCAs as long as the LCA is submitted later.

It is still unclear whether there was an .overrun. of approvals last year, and how those cases will be treated.

Bottom line: If you have a new H that would be subject to the cap, or an F-1 to H, immediate action is necessary to have a chance at approval this fiscal year.

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.