Effective today, the H-1B cap of 115,000 visas for Fiscal Year 2000 has been reached. There are enough H-1B petitions pending at the INS Service Centers (45,000) to reach the cap, when added to those already approved this year (74,300). INS has today published its Notice in the Federal Register, and announced how it will handle petitions submitted before and after today.
Cases Received before 3/21/00. For those petitions seeking first-time employment of an H-1B worker, received at INS before 3/21/00 and now pending, INS will adjudicate the petitions and most will likely be approved in the normal course. Cases currently being processed were receipted in early January, 2000. If approved after the numbers have been exhausted, INS will grant a start date of October 1, 2000 or later. If the 10/1/00 date would not be acceptable, the petitioning employer can notify INS that it wants to withdraw the petition; the filing fees will not be refunded.
Cases Received on or after 3/21/00. For those petitions seeking first-time employment of an H-1B worker, received at INS on or after 3/21/00, INS will return the petition and fees to the petitioners. The petitions can be resubmitted requesting employment beginning on or after October 1, 2000. Petitions seeking beginning dates on or after 10/1/00 will be processed as received by INS, and will be counted against the cap of 107,500 for FY 2001.
Cases Not Affected by the Cap. INS is continuing to process petitions filed for workers currently in H-1B status, such as extensions of stay, change of employer, amendments of terms of current employment, and concurrent employment. However, all Service Centers are experiencing substantial delays in processing these non-cap cases, and 8 to 12 weeks would be a reasonable estimate for current processing times.
F and J Visa Holders Caught by the Cap. Foreign students (F) and exchange visitors (J) for whom H-1B petitions have been timely filed seeking change of status may remain in the U.S. while waiting for new H-1B visas to become available on 10/1/00. Neither they nor their dependent spouses and children may work during this time, unless they have a valid Employment Authorization Document. They must not otherwise violate their status. .Timely filed. means that the student or exchange visitor must be in valid status at the time that the H petition is filed. See 64 F.R. 32146 (6/15/99). An F-1 or J-1 foreign national in this situation may receive a signing bonus from the petitioner before the actual validity date of the petition. A signing bonus does not represent salary or a reimbursement for services rendered, and thus it may be paid to the foreign national.
Pending Legislation. Several proposals have been introduced and are currently working their way through Congress. Generally, they would increase the cap on H-1B visas going forward, and could, if passed early enough, increase the number available for this fiscal year. The training/filing fee of $500 could also be increased, to $1000 or more. As we know, there is no predicting what Congress will do, or when.
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.