The Immigration and Naturalization Service ("INS") yesterday issued guidance to employers on how it will treat H-1B petitions affected by the anticipated reaching of the 115,000 H-1B cap. The INS has indicated that, as of February 29, 2000, it had "recorded" 74,300 petitions subject to the cap, and that, as of this date, it had more than 45,000 petitions subject to the cap pending at its four Service Centers. The INS therefore estimates that there is a sufficient number of H-1B petitions pending to reach the cap. Please note that this does not mean that the INS has already approved 115,000 H-1B petitions subject to the cap; the INS is reasonably estimating, however, that it will have approved 115,000 of these petitions before the end of this fiscal year.
The INS also notes that it is currently adjudicating H-1B petitions filed as late as January 20, 2000. This does not mean that all cases filed before this date will escape being caught by the cap. At present, there is no indication of which filing date can be regarded as a safe harbor for new H-1B petitions.
The INS makes the following observations:
- The INS will reject any H-1B petition that is subject to the cap that requests an employment start date before October 1, 2000 and is received on or after March 21. These petitions will be returned, with the fee, to the petitioners. They may be refiled with a request for an October 1, 2000, start date, however.
- "Pipeline" cases (H-1B petitions subject to the cap that were filed before March 21 and before the date the cap is reached, but were not processed as of this date) will be adjudicated in the order of receipt, but will be assigned an employment start date of October 1, 2000, regardless of the employment start date indicated in the petition. The INS will assume that such an employment start date is acceptable to the petitioner.
- Employers who do not want October 1, 2000, employment start dates may withdraw their H-1B petitions and forfeit their fees, including the $110 filing fee and the $500 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998. Requests for withdrawal should be faxed to the INS' Immigration Services Division at (202) 514-2093 (Attention: H-1B Withdrawal).
- H-1B petitions subject to the cap that are filed after March 21, 2000, and request an employment start date of October 1, 2000, or later, will be processed by the INS.
Please note: Only new petitions for H-1B status are affected by the 115,000 cap.
H-1B Petitions Not Affected
- Applications for an extension of stay for a person already here in lawful H-1B status;
- Amended petitions filed to reflect a change in the circumstances of an H-1B beneficiary's employment;
- H-1B petitions filed to change the employer of a person already here in lawful H-1B status.
The practical effect of the INS' policy with respect to the anticipated reaching of the 115,000 cap is that employers may not hire any new employees in H-1B status until October 1 of this year, unless the candidate for employment is already present in the United States in lawful H-1B status. All companies that had plans to employ such new employees should therefore consider alternative strategies for these persons. Please contact our office to discuss such strategies.
The fact that the INS will continue to process H-1B petitions between the reaching of the cap and the start of the new fiscal year on October 1, 2000, means that it is highly likely that the allocation of new H-1B approvals for the 2001 fiscal year (which will be reduced to 107,500 from 115,000) will be exhausted very early in the next fiscal year.
INS Once Again Grants Relief to F-1 and J-1 Aliens Affected by the Reaching of the H-1B Cap
As it did last year, the INS will extend the "Duration of Status" periods of stay of F-1 and J-1 aliens who have filed H-1B petitions affected by the H-1B cap until those petitions are processed. This means that F-1 or J-1 aliens who have filed H-1B change of status petitions affected by the reaching of the H-1B cap may remain in the United States, even though their respective sixty and thirty day grace periods have expired or will expire before their petitions are processed. Such aliens are considered to remain in valid nonimmigrant status, and will not accrue any periods of unlawful presence.
To take advantage of this regulation, the alien's employer or prospective employer must have timely filed an H-1B petition and change of status application that cannot be approved before October 1 because of the reaching of the H-1B cap. The alien must also have maintained the terms of his or her F-1 or J-1 admission at all times.
Please note: This extension does not carry with it a corresponding grant of employment authorization or an extension of any previously granted employment authorization. F-1 and J-1 aliens covered by this regulation may therefore not be employed until their H-1B petitions are approved unless they are authorized to accept employment under their F-1 or J-1 status. The INS has also indicated, however, that affected aliens "may receive a signing bonus before the validity date of the H-1B petition. A signing bonus does not represent a salary or a reimbursement for services rendered and, as a result, may be accepted by the alien."
Dependents of F-1 and J-1 aliens are also protected by this provision. J-1 aliens subject to the two-year home residence requirement are not protected.
INS Has Not Included Cases Approved in Excess of the 1999 Fiscal Year's Count in the 115,000 2000 Fiscal Year Count
The INS has also indicated that H-1B petitions that were inadvertently approved in excess of the allocation for the 1999 fiscal year were not counted against the allocation for the 2000 fiscal year. An announcement concerning the INS' treatment of this matter will be issued at some point in the future.