H-1B UPDATE

The INS has suddenly reversed itself and now says that the reaching of the H-1B cap is imminent and that it will NOT provide the 30 days notice that the cap will be reached that we reported in our February 11, 2000 update to this page. According to the American Immigration Lawyers Association, the INS will simply make an announcement that as of the date of the announcement only cases already received will be adjudicated under the cap and later filed cases will be adjudicated under the FY 2001 cap. 

The INS has told AILA that it will use procedures similar to last year in dealing with cases filed around the cap date. If an application is received before the cap announcement, but numbers nonetheless run out, the case will be given an October 1st start date. If a Labor Condition Application has not yet been received, the INS will take the case anyway and issue a request for evidence that will allow the LCA to be submitted later. But it is possible that the cap could be hit between the RFE being issued and the receiving of the LCA and that such cases would be given October 1st start dates. While it is acceptable to submit cases without LCAs, the INS did caution that it would not accept "skeletal" filings - those filings with just a signed I-129 form but no supporting documents.

The INS is also expected to have a similar rule allowing F-1s and J-1s with "duration of status" I-94 cards who file H-1B change of status cases before the announcement date to remain legally in the US (but without work authorization) while they wait for October 1st start dates. But no official word on this is yet available.  

One additional disturbing piece of news came from the INS today as well. On December 7th, we reported that the INS believed it may have undercounted H-1B visas from last year by as many as 20,000. The INS was considering deducting the number from this year's quota. We later reported on serious flaws in the H-1B counting system that may mean that the INS may have actually overstated H-1B usage by as much as a third for the last several years. (See our January 3, 2000 entry).  It was commonly believed that the INS would not dare try and deduct numbers from this year until it could prove that it had accurately counted last year's approvals.  The INS is now saying it is again deducting the supposed overage from this year's numbers. If this happens, many cases still in the pipeline at INS would not be adjudicated under this year's cap and would instead get October start dates. The move would be highly controversial and is likely to be challenged in court as well as by angry members of Congress who have warned the agency against such a move.

The INS has reported to the American Immigration Lawyers Association that as of January 27th, H-1B applications with receipt dates of November 5th and November 7th were being adjudicated. That means that cases filed in mid to late November should now be coming up for adjudication. The INS further stated that they are trying to stick to a 60 day turnaround on cases.