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H-1B CAP HIT
For quite some time we have been warning readers that the H-1B visa cap would be hit very early this year. Readers will, therefore, not be surprised to learn that the INS has announced that the fiscal year 2000 cap was reached on March 21, 2000.  Despite the fact that there were more visas available than in any other year, the cap was reached quicker than ever before.  Given the continued excellent performance of the US economy and the extremely low rate of unemployment, this is not a surprise at all. 
As announced in the Federal Register on March 21, 2000, the INS will follow procedures similar to those announced last year in dealing with the cap. 
There are some important things to note in approaching the H-1B cap issue.  First are the things that are not true.  Right away, people should be aware that this announcement does not mean that no more H-1B visas will be issued.  Visas will still be available in non-cap cases (those involving amendments, extensions, and transfers), and H-1B petitions already filed should not be denied because of the cap.  When the INS says in this announcement that the cap has been reached, it does not mean that all 115,000 visas available this year have been issued.  Rather, it means that combining the visas that have been issued (74,300 as of February 29, 2000) with the cap cases that have been filed and are in the pipeline (an estimated 45,000 as of February 29, 2000) will reach the cap.  The INS assumes that some of these cases will be denied because they are not approvable regardless of the cap. Therefore, people with pending H-1B applications should not necessarily be worried that it will be denied because of the cap.  
Even though it may be possible that the INS is mistaken and does not have enough cases to account for all available visas, it will no longer accept H-1B petitions requesting an employment start date before October 1, 2000.  Nor will the INS hold these cases pending the start of the 2001 fiscal year.  Instead, it will reject these cases, and return them, along with the fee, to the petitioner.  However, it will accept and begin processing cases that request a starting employment date on or after October 1, 2000.  Those cases that have already been submitted that request a start date before October 1 will not be rejected, although if they do run up against the cap they will be approved with a start date of October 1 and counted toward the 2001 cap.  
If an employer is not willing to wait until October 1 for employment to begin, they should notify the INS in writing that they want the petition withdrawn.  The notice should be faxed to the following: 
Immigration and Naturalization Service 
H-1B Withdrawal Section 
Washington, D.C. 
Fax number 202/514-2093 
This fax should be signed by the petitioner or their authorized representative and should include both the filing receipt number and the names of the petitioner and beneficiary. 
If the petition has already been approved with an October 1 start date, the employer should notify the INS in writing that it wants the petition revoked.  In neither of these cases will the INS be able to refund the fee.  
Of much interest to many is how the INS will deal with those in F or J status who are the beneficiaries of an H-1B petition. Fortunately for those individuals, the INS will take the same approach it did last year.  F and J nonimmigrants who are the beneficiaries of timely filed H-1B applications will have their status extended until October 1, 2000, or until the H-1B petition is adjudicated.  Dependents in F-2 and J-2 status will also have their status extended.  Note however, that while such people are in valid nonimmigrant status, they are not work authorized.  However, the INS will allow such people to receive signing bonuses, as those are not payment for services rendered.  
Finally, none of the 2000 visas have been used to address the claimed overissuance of H-1B visas is 1999.  According to the item in the Federal Register, “the Service has not yet determined the exact amount of that discrepancy.  The Service will publish a future notice in the Federal Register addressing how these cases will be treated once the exact amount of the H-1B discrepancy in Fiscal Year 1999 has been determined.”  Of course, many believe that when that determination is made it will be discovered that not all the available visas were issued given recent allegations that the INS is engaging in a massive overcount of H-1B usage. Also, the Lofgren-Dreier H-1B bill in the House contains a provision retroactively raising the 1999 H-1B visa count to automatically cover any visas issued in excess of the cap numbers.