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H-1B
Numerical Limit for 2000 F.A.Q.
This
letter explains how the Immigration and Naturalization Service
(the Service/INS) will process H-1B petitions for new employment
for the remainder of this fiscal year now that it is clear
that the demand for H-1B workers will exceed the statutory
numerical limit (the cap) of 115,000 H-1B petitions for Fiscal
Year 2000. This letter will assist the public in understanding
the Service's procedure for processing H-1B petitions, as
the procedure may affect the business decisions of some prospective
H-1B petitioners. These procedures are intended to minimize
the confusion and burden to employers who use the H-1B program,
reduce the administrative burden at the Service Centers, and
eliminate the need for employers to inquire about the status
of pending H-1B petitions. This letter will also inform the
public that the Commissioner of the INS is exercising her
authority under 8 CFR 214.2(f)(5)(vi) and (j)(1)(vi) for this
fiscal year to extend the duration of stay for certain F and
J non-immigrants (students and exchange visitors) if their
employer has filed a timely request for change of nonimmigrant
status to that of an H-1B nonimmigrant alien and the petition
was filed before October 1, 2000. This measure will prevent
a lapse of status for these aliens before the Service is able
to act on petitions to change their status.
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What is an H-1B nonimmigrant?
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What is the cap or numerical limitation on the H-1B nonimmigrant
classification?
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Does this procedure apply to all H-1B petitions filed for
this fiscal year?
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What is the Service's procedure for processing H-1B petitions
for new employment during the remainder of this fiscal year?
- What
should a petitioner do if the October 1 start date for employment
is not acceptable?
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How should a petitioner notify the Service that it wishes
to withdraw a petition?
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Does this process apply to H-1B petitions filed for employment
to commence on or after October 1, 2000?
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How will the Service process petitions that are revoked?
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Will the Service refund a filing fee if a petition is withdrawn
or revoked?
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Will the Service allow certain F and J nonimmigrant aliens
who are the beneficiaries of H-1B petitions to remain in
the United States until they can change their status to
H-1B on or after October 1, 2000?
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When will the Commissioner exercise her authority to extend
duration of status for this fiscal year?
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May an F or J nonimmigrant whose stay is extended under
this provision accept a hiring bonus before October 1, 2000?
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Does the Fiscal Year 2000 cap include the cases that the
Service approved in excess of the cap in Fiscal Year 1999?
1. What is an H-1B nonimmigrant?
An H-1B nonimmigrant is an alien employed in a specialty occupation
or as a fashion model of distinguished merit and ability.
A specialty occupation is an occupation that requires theoretical
and practical application of a body of specialized knowledge
and attainment of a bachelor's or higher degree in the specific
specialty as a minimum for admission into the United States.
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2. What is the cap or numerical limitation on the H-1B nonimmigrant
classification?
Section 214(g) of the Immigration and Nationality Act (the
Act) provides that the total number of aliens who may be issued
H-1B visas or otherwise granted H-1B status during Fiscal
Year 2000 may not exceed 115,000. As of February 29, 2000,
the Service has recorded 74,300 petitions against the cap
for Fiscal Year 2000. As of February 29, 2000, there are more
than 45,000 H-1B cap petitions pending at the four Service
Centers. Since on average the Service approved 90 percent
(90%) of the H-1B petitions it receives, there now appears
to be a sufficient number of H-1B petitions pending at the
four Service Centers to reach the cap for this fiscal year.
Therefore, as of [Date of publication in the Federal Register],
the Service will reject any petitions requesting a start date
prior to October 1, 2000.
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3. Does this procedure apply to all H-1B petitions filed for
this fiscal year?
No.
The procedure described relates only to H-1B petitions filed
for new employment to commence on or before September 30,
2000. A petition for new employment includes a petition where
the alien beneficiary is outside the United States when the
H-1B petition is approved or where the alien is already in
the United States and is seeking a change of nonimmigrant
status to an H-1B nonimmigrant alien. Amended petitions and
petitions for extension of stay are not affected by this procedure
because these petitions do not count against the cap. Likewise,
petitions for aliens in the United States who already hold
H-1B status, i.e., petitions filed on behalf of an H-1B alien
by a new or additional employer, are not affected by this
procedure. This procedure does not relate to petitions filed
before October 1,2000, for employment to commence on or after
October 1, 2000.
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4. What is the Service's procedure for processing H-1B petitions
for new employment during the remainder of this fiscal year?
The Service will not accept for adjudication any H-1B petition
for new employment containing a request for a work start date
prior to October 1, 2000. These petitions will be rejected
and returned (along with the filing fee) to the petitioner
according to 8 CFR 214.2(h)(8)(ii)(E). However, such petitioners
are free to re-file those petitions with a new starting date
of October 1, 2000, or later. The Service will not reject
a pending petition when the Fiscal Year 2000 allotment of
115,000 H-1B numbers has been exhausted. Just as in Fiscal
Year 1999, the Service will proceed to adjudicate the petition
based on a presumption that the employer will accept October
1, 2000, as the date from which the approved petition is valid
and the first date on which the alien beneficiary may begin
employment as an H-1B worker. It must be noted that the Service
received favorable comments from the public on this procedure
when it was first implemented in Fiscal Year 1999. In view
of these favorable comments, the Service will continue to
use the same process this fiscal year. Each Service Center
will coordinate their adjudication of pending H-1B petitions
to ensure that all petitions will be processed in order of
receipt by the Service Center irrespective of the place of
filing. The Service is currently adjudicating H-1B petitions
which were filed as late as January 20, 2000. Thereafter ``pipeline''
cases (petitions filed prior to the date the cap was reached)
will be adjudicated in the order of receipt, but will be assigned
a work start date of October 1 of the new fiscal year or later.
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5. What should a petitioner do if the October 1 start date
for employment is not acceptable?
If the petitioner is unwilling to wait until the October 1
start date for employment of the H-1B alien and the Service
has not yet adjudicated the petition, the petitioner should
notify the Service in writing that he or she wishes to withdraw
the petition. As noted below, the Service cannot refund the
filing fee in such cases. If the Service has approved a petition
for work to begin as of October 1, 2000, and the petitioner
determines that the date is not acceptable, the petitioner
should notify the Service is writing immediately so that the
Service can revoke the petition and recapture the number and
return it to the pool of unused numbers of Fiscal Year 2001.
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6. How should a petitioner notify the Service that it wishes
to withdraw a petition?
If a petitioner wishes to withdraw a pending H-1B petition
or an approved H-1B petition for new employment, the petitioner
should fax a withdrawal request to the Immigration and Naturalization
Service, Immigration Services Division, H-1B Withdrawal Section,
Washington, DC, fax number: 202-514-2093. The request should
be signed by the petitioner or authorized representative and
include the filing receipt number and the names of both the
petitioner and beneficiary. Employers seeking to request withdrawal
of an H-1B petition should use this fax number and special
procedure.
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7. Does this process apply to H-1B petitions filed for employment
to commence on or after October 1, 2000?
No. Those petitioners are not affected by the procedures described
in this in this notice and will be adjudicated in the normal
fashion, regardless of whether they are pending as of the
date of this notice or filed after this year's cap is reached.
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8. How will the Service process petitions that are revoked?
The Service will subtract revocations of any H-1B petitions
for new employment from the total H-1B count in the fiscal
year for which the new employment was approved. After the
petition is revoked, the case number will be sent to the Immigration
Services Division (ISD) where the number will be recaptured
for use. The number will then be forwarded by ISD to a Service
Center to be assigned to a pending petition. Priority will
be given to approved petitions in the order they were received
(e.g., petitions that were originally denied but subsequently
ordered approved by the Administrative Appeals Office).
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9. Will the Service refund a filing fee if a petition is withdrawn
or revoked?
No, the Service will not refund either the $110 filing fee
or the additional $500 filing fee imposed by the American
Competitiveness and Workforce Improvement Act of 1998 when
a petition is revoked. The provisions contained in 8 CFR 103.2(a)(1)
preclude the refunding of filing fees on I-129 petitions in
this situation. The Service will refund a filing fee only
if the filing of the petition was a result of Service error.
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10. Will the Service allow certain F and J nonimmigrant aliens
who are the beneficiaries of H-1B petitions to remain in the
United States until they can change their status to H-1B on
or after October 1, 2000?
Yes. The Service published an interim rule in the Federal
Register of June 15, 1999, at 64 FR 32146 that amended its
regulations to expand the definition of duration of status
for certain F and J nonimmigrant aliens whose employer has
filed a timely H-1B petition and application for change of
nonimmigrant classification. The interim rule provided that
the Commissioner may extend the duration of status, by notice
in the Federal Register, of any F or J nonimmigrant alien
whose employer has filed a timely petition for change of nonimmigrant
status to that of an H-1B nonimmigrant as described in 8 CFR
part 248, [[Page 15180]] provided the alien has not violated
the terms of his or her admission to the United States, at
any time the Commissioner determines that the H-1B cap will
be reached prior to the end of the fiscal year. This extension
shall continue for such time as is necessary for the Service
to approve a petition changing the alien's status to H-1B
in the following fiscal year. An alien whose duration of status
has been extended by the Commissioner under these regulations
(and who continues to adhere to the other terms of the alien's
F and J status) is considered to be maintaining lawful nonimmigrant
status for all purposes under the Act.
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11. When will the Commissioner exercise her authority to extend
duration of status for this fiscal year?
This notice informs the public that the Commissioner has exercised
her discretionary authority under 8 CFR 214.2(f)(5)(vi) and
8 CFR (j)(1)(vi) for this fiscal year. Accordingly, any F
or J nonimmigrant whose employer has filed a timely request
for change of nonimmigrant status to that of an H-1B nonimmigrant
alien whose petition was filed or will be filed before October
1, 2000, is considered to be in a valid nonimmigrant status
until October 1, 2000, or until the date the Service adjudicates
the change of status application. Pursuant to 8 CFR 248.1(b)
and 214.1(c)(4), the term ``timely filed'' refers to an application
for a change of nonimmigrant status filed prior to the expiration
of the alien's period of authorized stay in the United States.
This provision also applies to the dependents of the affected
F and J nonimmigrant aliens. An alien affected by this provision
may not work for the petitioning employer or otherwise engage
in activities inconsistent with the terms and conditions of
the alien's nonimmigrant classification prior to the date
for which the Service approves the request for a change of
status.
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12. May an F or J nonimmigrant whose stay is extended under
this provision accept a hiring bonus before October 1, 2000?
Yes. An F-1 or J-1 nonimmigrant alien 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.
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13. Does the Fiscal Year 2000 cap include the cases that the
Service approved in excess of the cap in Fiscal Year 1999?
No. Any cases that the Service may have approved in excess
of the Fiscal Year 1999 cap were not counted against the Fiscal
Year 2000 cap. While the numerical cap for the H-1B visa category
was exceeded in Fiscal Year 1999, the Service has not yet
conclusively determined the exact amount of that discrepancy.
The Service will publish a future notice in the Federal Register
addressing how these cases will be treated once the exact
amount of the H-1B discrepancy in Fiscal Year 1999 has been
determined.
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