How the October 2000 Law Increases the H1B Quota Beyond 195,000
Posted Oct 30, 2000

By now most readers of the MurthyBulletin are aware that the groundbreaking legislation known as the American Competitiveness in the Twenty First Century Act increases the number of H1Bs to 195,000 for fiscal years 2001, 2002, and 2003. But the actual number of persons eligible for H1B visas is likely to significantly exceed that number, thanks to several provisions that change the way professionals are counted toward the H1B quota. We take this opportunity to describe these new rules.

Cases which are not counted toward the 195,000 H1B quota are:

(a) Persons who will be working for institutions of higher education (universities and colleges), research organizations that are affiliated with such institutions, nonprofit research organizations, and government research organizations. Information published by the American Immigration Lawyers Association (AILA) estimates this change will amount to an increase of 6,000 to 10,000 H1Bs per year.

These employers are the same employers who have been exempted from the H1B "training fee" ($500, which will increase to $1000 on or about December 17, 2000). Please note that the separate legislation to increase this fee also exempts certain other employers from paying the fee:  namely, elementary and secondary schools and nonprofit institutions providing certain curriculum-related training programs. However, those employers will still have their H1B workers counted toward the quota.

(b) Physicians who were previously on a J-1 visa, who are subject to the 2-year home residency requirement and have obtained a waiver based on the Conrad 20 Program. 

In addition, we have others who were previously counted against the H1B cap that will no longer be counted against the cap.

In prior years, petitions filed after the H1B quota was filled were counted toward the following fiscal year (FY). The new law, however, starts the count fresh, as follows. If a petition was filed after the INS announced in mid-March that the quota was filled, but not later than August 31, 2000, it would only count toward last year (FY2000)'s quota and not against FY 2001. Only cases filed after August 31, 2000 are being counted toward the quota for the current year, FY 2001. Consequently AILA estimates that about 30,000 that would have been counted toward this year were counted toward last year instead. That counting method also adds to this year's pool of available H1B approvals.

Another provision that will likely increase the numbers only slightly is a change in the counting method for revoked cases. If an H1B petition is revoked on the ground of fraud, the number is returned to the allocation of H1Bs for the current year, regardless of when the case was originally approved.

The new law also corrects the problem of people being improperly counted twice toward the quota. A person who has received an H1B in the past 6 years and has not spent a year outside the U.S. (which would reset the 6-year clock) will not be counted again toward the H1B quota when another petition is filed within that 6-year time. In the past, some persons who had more than one petition filed, or who were traveling abroad to pick up their visas after spending time in the U.S. in H1B status, ended up being re-counted toward the quota. Estimates vary as to how many possible H1B slots were lost due to these past counting errors. Correction of this problem may add 3,000 to possibly 12,000 more H1B numbers to those available.

Hopefully the combined result of all these provisions should relieve the pressure and prevent the H1B quota being met this fiscal year.