Information Regarding the H-1B Numerical Limitation for Fiscal Year 2000

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Notice.

SUMMARY:

This notice 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 notice is published so that the public will understand 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 notice also serves to 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 nonimmigrants (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.

DATES:

This notice is effective March 21, 2000.

FOR FURTHER INFORMATION CONTACT:

Tracy Renaud, Adjudications Officer, Immigration Services Division, Immigration and Naturalization Service, 801 I Street, NW, Room 980, Washington, DC 20536, telephone (202) 305-8010.

SUPPLEMENTARY INFORMATION:

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.

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.

What is the effect of this action?

This notice explains the Service's procedure for processing H-1B petitions for new employment that are filed by employers seeking to employ H-1B aliens during the remainder of this fiscal year, i.e., through September 30, 2000. The process described in this notice is similar to the process the Service used in the fiscal Year 1999 for handling H-1B petitions after the cap had been reached.

The Service also published a proposed regulation at 64 FR 32149 on June 15, 1999, that described the method that it would use in handling H-1B petitions in subsequent fiscal years. This notice contains the same language as in the proposed rule.

Does this procedure apply to all H-1B petitions filed for this fiscal year?

No. The procedure described in this notice 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.

What is the Service's procedure for processing H-1B petitions for new employment during the remainder of this fiscal year?

This notice inform the public that there are a sufficient number of H-1B petitions pending at the four Service Centers to reach the cap of 115,000 for 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 refile 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.

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.

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.

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.

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).

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.

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, 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.

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.

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.

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.