INS Advice on Completion of Form I-129 for H1Bs
Posted Jan 17, 2000

On December 9, 1999, the INS Associate Commissioner of Service Center Operations issued a Memorandum, for immediate effect, superceding the October 1999 and the December 3, 1999 Memoranda, on the subject of the correct manner to complete Part 2 of the Form I-129 and the appropriate usage of the Form I-824 for consular notifications.

The importance of this Memorandum, in addition to helping employers, is to help the INS keep track of the H1B Petitions to be counted against the H1B cap.

As explained in previous editions of the Immigration Law Bulletin of The Law Office of Sheela Murthy, only H1B Petitions for new employment should be counted against the H1B cap. The INS Memo clarified that new employment refers only to H-1B petitions that are filed for those professionals who are not currently in the United States in H-1B status. A petition filed by an employer for an H1B professional who currently is on H-1B status in the U.S. with a different employer should not be considered in counting against the H1B cap.

Accordingly, only petitions that are marked with the following combinations: (i) 2a plus 4a or (ii) 2a plus 4b in part 2 of the I-129 petition are considered new employment for counting purposes. Any other boxes checked off or a combination of others being checked off will not be considered to be "cap cases." For example, if box 4c is checked, since the beneficiary is already holding H-1B status in the U.S., the Petition is not considered in the H1B count against the H1B cap.

There has been much criticism that the INS is not counting the H1B cases correctly for the H1B cap purposes and there may be an exaggeration of the H1B numbers used in the previous fiscal year and possibly also in this fiscal year. Senator Spencer Abraham has challenged the INS on its methodology of counting H1Bs against the H1B cap. The INS counts the number of approved H-1B petitions through its CLAIMS software to keep track of the H1B usage against the H1B cap. Confusion in the way the forms are designed, has possibly resulted in many H1B petitions being counted against the H1B cap due to employers checking off the wrong boxes, and INS incorrectly counting any form with box 2a ("new employment") checked as an H1B cap case. We had outlined this problem, particularly with respect to the Nebraska Service Center, in an earlier edition of the Immigration Law Bulletin of the Law Office of Sheela Murthy.

To prevent this problem from recurring, the INS is in the process of revising the Form I-129 in order to allow it to more efficiently and easily keep track of the H1B numerical limitation. Although a redesign of the form is a good first step, there is still a possibility of double counting by the INS when it assumes that any person requesting consular notification is deemed to be a new H1B candidate and should therefore be counted against the H1B cap. A safe approach would be to avoid requesting consular notification when an H1B professional travels abroad but focus on filing it as a change of status, since INS policy now allows the later approval to supercede the earlier I-94 date stamped by the INS port of entry officer.

The Law Office of Sheela Murthy believes that the KPMG audit and the INS Memo attempting to clarify the confusion of the methodology of counting H1Bs against the cap are both steps in the right direction. We hope that at least for this fiscal year 2000 there will be more consistency among the different Service Centers and this will result in a more uniform processing of H1B Petitions and without the H1B usage being inflated by INS. Maybe the H1B cap is not that near after all if there is accurate counting!