INS Announces Imminent Exhaustion of H1Bs
Posted Feb 18, 2000

Just today on February 17, 2000, the INS has advised that they believe the H1B quota will soon be exhausted for this fiscal year (FY), reversing its position from about a week ago!

Many of you have been contacting the Law Office of Sheela Murthy requesting an update on the number of H1Bs used against the 115,000 H1B quota for this FY. Although the Immigration and Naturalization Service (INS) had not released specific numbers, they stated about a week ago that there were still H1Bs available for this FY. However, earlier today, on February 17, 2000, the INS has changed its position and now advises AILA that they are close to reaching the H1B cap for this FY. However, they believe that, in all likelihood, those H1B Petitions already filed with the INS will be approved in this FY with a pre-October 1, 2000 date, but they could not guarantee that either!

The INS now states that they will only issue a Notice in the Federal Register when the number of H1B Petitions which have been approved so far, along with the cases pending at the four INS Service Centers, will result in all 115,000 H1Bs being exhausted for this FY. The INS had earlier advised AILA that they would issue a notice in the Federal Register when they believed that there would be sufficient H-1B cases in their Service Centers to reach the H1B cap.

INS now indicates they will, in all likelihood, use similar procedures to those used last year when the H1B cap was reached for FY 1999. This implies that once they make a final announcement regarding having reached the H1B cap for this FY, the following will take place :

(a) No new H1B Petitions will be accepted with a date earlier than October 1, 2000.

(b) Pending H1B Petitions at the INS Service Centers will be processed with a start date of October 1, 2000.

(c) INS will accept H1B Petitions with proof of the Petitioner having filed the Labor Condition Application (LCA). The INS will issue a RFE for the LCA but if the H1B cap is met in the interim, the Petition will only be approved with an October 1, 2000 start date. Mere "skeletal petitions" without supporting documents will not be accepted but H1B packages filed without the approved LCAs are acceptable.

(d) Those on F or J status, whose I-94 cards generally indicate duration of status (D/S) validity, will be allowed to remain legally in the U.S. till the start date of the pending H1B Petition. However, such students or exchange visitors will not be allowed to work if the Employment Authorization Document (EAD) has expired. From the date of the EAD's expiration until approval of the pending H1B Petition, the person will be allowed to remain legally in the U.S. The INS has not confirmed its position on this issue for this year but had mentioned last year, in June 1999, that they intended to follow this interpretation for future years.

INS has also not yet made a decision on how to deal with the possible excess of H1B Petitions that may have been incorrectly approved during the last FY. If they have to deduct last year's cases from this year's quota, the INS believes, that some of the H1B Petitions already filed at the Service Centers, will not be approved for this FY! As some of you may be aware, AILA and other organizations have challenged INS methodology of counting H1Bs at the different Service Centers and challenged any possibility of INS using their error to the detriment of H1Bs filed for this FY.

The Law Office of Sheela Murthy will continue to provide regular updates to you, our subscribers, on this important issue.

The Law Office of Sheela Murthy, P.C.