INS Update in Federal Register on H-1B Cap
Posted Mar 22, 2000

As we mentioned in the H1B Newsflash we sent out from the Law Office of Sheela Murthy on March 19, 2000, today on March 21, 2000, the Immigration and Naturalization Service (INS) has issued a statement in the Federal Register, providing its update on the H-1B cap for Fiscal Year 2000.

In its statement the INS explained that as of February 29, 2000, 74,300 H1B Petitions were approved against the cap for Fiscal Year 2000. In addition, there are more than 45,000 H-1B petitions which are subject to the cap which are pending at the four INS Service Centers. The INS further stated that they tend to approve approximately 90 percent (90%) of H-1B petitions they receive and therefore, they have sufficient number of H1B Petitions pending to meet the cap of 115,000 for this Fiscal Year 2000.

New Petitions Submitted to INS

In light of the above developments, the INS will not accept any new H-1B petitions which request a start date prior to October 1, 2000. Any new H1B Petition submitted to the INS will be rejected and returned with the filing fee to the Petitioner. However, the petitioner may refile the H1B Petition with a new start date of October 1, 2000, or later.

Pending Petitions

INS will not return or reject H1B petitions pending at the four INS Service Centers when they determine that the H-1B cap has been exhausted. Instead the INS plans to continue processing these H1B Petitions in the order they were received at the INS, on the assumption that the employer will accept October 1, 2000 as the date from which the approved petition is valid and the H1B employee would be able to begin employment from October 1, 2000.

If the October 1 start date is not acceptable and INS not completed adjudication of the H1B Petition, the Petitioner should withdraw the petition by notifying the INS in writing. 

If the INS approves the H1B Petition with a start date of October 1 and the start date is unacceptable, the Petitioner should revoke the H1B Petition, again by notifying INS in writing. The INS will not refund the $110 filing fee or the $500 training fee for petitions that are withdrawn or revoked.

Procedure to Withdraw an H1B Petition

To withdraw a pending H1B Petition or an approved H1B Petition, the employer should fax a request for withdrawal to: Immigration Services Division, H-1B Withdrawal Section, Washington, D.C. at the following fax no.: 202-514-2093. The withdrawal request should be signed by the Petitioner or the attorney and include the filing receipt number, with the names of both the Petitioner and the H1B Beneficiary.

Students and Exchange Visitors in F and J status

Students or exchange visitors in F and J status who are beneficiaries of timely filed H-1B petitions are allowed to remain in the United Stated in a valid F or J status until October 1, 2000, or until the date INS adjudicates the change of status application.

If the H1B employer files an H1B Petition on behalf of a person on F or J status before October 1, 2000, the F or J non-immigrant is considered in valid status till October 1, 2000, or until the date the INS adjudicates the change of status petition.

Sign On Bonus
 
An F-1 or J-1 non-immigrant may accept a sign on bonus before the validity date of the H1B Petition, since the sign on bonus would not represent a salary or reimbursement for work performed.

Excess Numbers From FY 1999

The INS has clarified that they will not count any excess of the FY 1999 H1B petitions approved since the exact number of H1B Petitions approved and any overage for Fiscal Year 1999 have yet to be determined. When the exact number is determined, the INS will make a decision on how to deal with the overage.