Status of the H1B Cap Issues - S.B. 1723 Approved by U.S. Senate
Prior to May 1998

NEWS FLASH -- S.B. 1723 Approved by U.S. Senate

On Monday, May 18, 1998, the U.S. Senate approved, by an overwhelming majority of 78 to 20, Senate Bill (Bill.) 1723. While this is long awaited good news for immigrants and those who have lobbied for increasing the H1B cap (among other pro-business provisions), the approval of S.B. 1723 does not make the provisions therein the law until the President signs the Bill into law. At the present time, it appears unlikely that President Clinton will sign the Bill.

IF THE BILL IS SIGNED INTO LAW, it would allow 30,000 more H1B professionals for this fiscal year by increasing the cap from 65,000 to 95,000. For the next fiscal year the cap is supposed to increase to 115,000 and this increased quota is supposed to continue until 2002.

The Law Office of Sheela Murthy, on Monday May 18, 1998, had addressed the issue of possible immigration ramifications for nationals of India as a result of the nuclear tests conducted by India. In response to India's nuclear tests of last week, an amendment was introduced and incorporated in S.B. 1723, at the last minute, allowing the Attorney General to revoke approved H1B visas if it is determined that the foreign national on an H1B visa has assisted in the development of weapons of mass destruction.

Of course, the anti-immigrant lobby is now hoping to sabotage any possible benefits of the pro-immigrant provisions in the Bill by adding strong anti-immigrant provisions in the House of Representatives version of the Bill which has been sponsored by none other than the powerful member of the House Judiciary Committee, Representative Lamar Smith of Texas.

The Office of Management and Budget (OMB) has recommended that the White House exercise its veto unless there are better protections for U.S. workers. However, the Senate had rejected two amendments which would have required U.S. companies to demonstrate efforts to train and hire U.S. workers if it intends to hire foreign nationals and prohibit companies from hiring foreign nationals if the company had laid off U.S. workers.

While the White House is debating if S.B. 1723 should be signed, the fate of the H1B cap continue to remain unresolved while U.S. companies, particularly software companies, continue to suffer from an acute shortage of qualified professionals amidst an acknowledged shortage of over 340,000 computer related jobs in the U.S. today. To paraphrase the words of some technology leaders: "If the U.S. does not take drastic action to address this shortage, our companies will establish foreign operations and take away many jobs from the U.S. to overseas."

May 21, 1998

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The Immigration and Naturalization Service (INS) reported on May 7, 1998, that the H1B cap was almost reached and that no new H1B Petitions will be approved until complete verification of the quota was completed. Apparently, INS expected that on or before Monday May 11, 1998, all the 65,000 quota will be used up.

The INS has issued a notice in the Federal Register on May 12, 1998, regarding how H1B cases which are in the pipeline will be handled by the INS after the cap is reached.

The INS has been instructed to observe the following guidelines:

a. Those cases where the petitioner has requested an October 1, 1998, start date, approve the H1B Petition with that date.

b. Cases filed before May 11, 1998, with an H1B start date before October 1, 1998, will be contacted by INS to verify if October 1, 1998 is acceptable to the employer.

c. Cases filed on or after May 12, 1998, will be returned to the employer or the attorney for resubmission with the October 1, 1998 as the start date of the H1B.

The issue that was not specifically addressed by the INS is what happens to those who will fall out of status in the interim between May 12, 1998 and October 1, 1998. In all likelihood such applicants may not obtain the H1B change of status approval and may have to travel to their home countries to obtain the H1B visa. The Law Office of Sheela Murthy will provide additional information to our clients when new information is released by the INS.

In any event, if a person is not subject to the H1B quota because the person is already on an H1B with another company, that fact should very clearly be noted on the H1B application to avoid delays in the H1B approval. Your AILA attorney has been advised of how to notate these Petitions to ensure prompt approvals!