H1B Cap Reached for FY2000!
Posted Mar 20, 2000

On Friday, March 17, 2000, the INS General Counsel notified AILA (American Immigration Lawyers Association) that the H1B cap for this fiscal year 2000 has been met. As many of you know, this means that the INS cannot approve any more H1B Petitions for new cases with a start date prior to October 1, 2000.

INS has advised AILA that they intend to publish a notice in the Federal Register on Tuesday, March 21, 2000, regarding having reached the H1B cap. INS also intends, in the same notice, to address the issue of the status of those cases pending at the INS Service Centers. At this time, we do not know how INS will deal with cases pending at the INS Service Centers. Last year, if you recollect, the INS considered those in F and J status, who had pending H1B Petitions to be considered in status, even if the F or J status expired prior to October 1. Although the INS has earlier stated that they will most likely to follow the same rules this year, they have not yet confirmed this fact.

INS also clarified that they do not intend to apply, against this fiscal year's quota, any alleged over-issuance of H1B numbers in the 1999 fiscal year. The INS, however, reserved the right to apply any such over-issuance of the 1999 H1B numbers against future years H1B quotas!

As many of you, as subscribers of MurthyBulletin, may be aware, there are bills pending in both the U.S. Senate and the U.S. House of Representatives, primarily addressing increasing the H1B numbers. We are summarizing them below, very briefly.

To counter the news about INS having reached the H1B cap so early in the fiscal year, we have some good news to share with regard to the Senate Bill, SB 2045, the American Competitiveness in the 21st Century Act. Last week, on March 13, 2000, the Senate Judiciary Committee passed the Bill by a 16 - 2 vote. There were no disagreements this time about the need for more H-1B professionals in the U.S. It is likely that the Senate will pass an H 1B Bill this year. However, there are certain issues which are expected to be debated: 

• increasing H1B fees from the existing $610 per H1B Petition,
• increasing labor protections on the H-1B program, 
• and increasing in the H1B
  numbers. 

We have discussed this Bill in an earlier issue of the MurthyBulletin.

On the other hand, the House Bill, H.R. 3814, "Technology Worker Temporary Relief Act," provides for only an additional 45,000 additional visas in addition to the current 115,000 H1B numbers, which have already been met for this fiscal year 2000. However, its biggest drawbacks are that the additional H1B numbers will be available only after the U.S. Department of Labor (DOL) implements final regulations on the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and only certain H1B employers can use the increase in H1B numbers. These employers, to be eligible, need to demonstrate that they have more U.S. workers on their payroll, a net increase in the total wages paid to their U.S. workers, and a net increase in the median wage paid to their U.S. workers, in this year compared to the previous year. Since the DOL has not issued any regulations for about one and half years, the likelihood of finalizing regulations in the next few months before the end of this fiscal year, is unlikely, making any increase a farce! Also, since smaller companies have fuelled the major growth of the U.S. economy in the last decade, this Bill, practically eliminates their participation in the H1B program!

As always, the Law Office of Sheela Murthy, will keep you informed of any other developments on this important issue of the H1B numbers!