As most of you recall, last year Congress raised the cap for H-1B workers to 115,000 from 65,000. Despite the increase, the cap was reached in early April, 1999, although INS did not officially announce it until June. There were serious problems because INS was not able to figure out how many had really been used, and because the Vermont Service Center was processing H.s much more quickly than the other Service Centers, to the detriment of employers in other parts of the country.
The problems continue. Although the government.s new year started 10/1/99, INS had already been processing H.s for this year since June, using up a large amount of the numbers. There is a rumor that during last year.s confusion, INS had actually used as many as 20,000 more numbers than were available, leading some to suggest that they be subtracted from this year.s allotment. INS still cannot determine where things stand for this year, further complicating planning for employers.
Recently, INS announced that the four Service Centers had been ordered to halt H-1B processing for cases filed after 10/25/99, in order to bring them closer together in the number of H-1B approvals issued. Vermont continues to be fairly quick in its adjudications, with the other three Service Centers much behind. As of 12/15/99, INS lifted the .pause. in processing, since the slower Service Centers had made progress in catching up. However, INS also warned that it will be imposing similar .pauses. in the future, with the next one possibly as soon as the week after Christmas. There is no new information about how many H-1B.s have been used this year.
For employers with prospective new employees needing H-1B status, there is only a cloudy crystal ball at this point. The best advice: make your decisions and get your cases filed as early as possible, since the only question is when the cap will be reached.
For employers hiring a new employee currently in H-1B status (i.e., working for another employer), neither the cap nor any future .pauses. should be a factor. These workers are not, in most cases, subject to the cap, and processing can continue.
For employees currently in F-1 status, working because of authorized practical training, the timing for filing an H-1B petition will depend on the expiration date for the practical training. Many students will likely fall into never-never land again this spring and summer, as their work authorizations run out and no H-1B is available until October 1, 2000.
Several pieces of legislation have been introduced into Congress attempting to deal with the problems in various ways, ranging from increasing the cap to exempting certain employees from the cap. Given the political hot issues, it is unlikely that any quick solution will be possible. As usual, once the cap is reached, no new approvals can be issued with effective dates before 10/1/2000.
Copyright) 1999 Nixon Peabody LLP. All rights reserved.
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.