Send in H-1B Withdrawals When Appropriate!
Posted Apr 10, 2000
In earlier editions of the MurthyBulletin, we outlined that the INS has now reached the H1B cap for this fiscal year. All new cases that will be filed or that are pending with the INS after the H1B is reached must indicate a start date of October 1, 2000 or later.
Now that INS Service Centers have nearly completed processing the H1B cases against this year's H1B quota, it is especially important for employers to withdraw H1B Petitions which were approved for persons who either never joined the petitioning company, or did not enter the U.S. on H1B status, etc. It is common for a prospective employee to file an H1B Petition with several companies and in essence, this could result in the incorrect usage of several H1B numbers for the same person, who may be living outside the U.S. So, don't forget to send in your H-1B withdrawals to the INS when appropriate!
Withdrawal of the H-1B petition would mean that an H-1B number would become available to another beneficiary, enabling the INS to approve more cases even after they believe they have reached the H1B cap since new numbers would be released for new candidates.
As mentioned in previous issues of the MurthyBulletin, if you need to withdraw an H-1B Petition, the employer or the attorney for the employer should fax a letter to 202-514-2093, at INS Headquarters. The request must be signed by the employer or the attorney, and include the receipt number and the names of the petitioner and beneficiary.
While the INS also expects employers to withdraw the H1B Petition when a person leaves the employer for another H-1B employer, a withdrawal in this situation is less crucial for purposes of the H1B cap, since a person who obtains a change-of-employer petition approval is still generally using the same H-1B "slot" that was approved, rather than taking an additional one. The INS has however stated that in certain instances, for example, where the person may not have entered the U.S. after obtaining an H1B approval and the following fiscal year another employer applies for a new H1B Petition, the person would again be counted against the H1B cap in the following fiscal year, since the INS considers such a person again subject to the H1B cap. The INS believes that their regulations require that they need to cross reference names and birth dates for each H1B applicant only within the same fiscal year!
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