INS REVERSES POSITION ON H-1B CAP BEING REACHED

Last month we reported that the INS had stopped issuing H-1B visas because the annual cap of 65,000 visa holders had been reached for Fiscal Year 1996 (October 1, 1995 to September 30, 1996). After complaints were received from many organizations (including the American Immigration Lawyers Association and the National Association of Foreign Student Advisors) regarding the methodology used to determine whether the cap was met, the INS reversed itself and announced that, in fact, there were thousands of visa still available.

On September 6, 1996, the INS issue a statement that revealed that it had overstated the number by about 5,000. The overestimate was due to the inclusion of amended cases (petitions involving a change in previously approved employment).

On September 16, 1996, the INS issued another statement indicating it was even further off in its initial findings. It failed to include revoked and withdrawn petitions, cases where an H-1B holder held more than one H-1B visa at the same time (65,000 is the number of H-1B workers admitted, not H-1B positions), and cases where a person switched to a new H-1B employer. It was found that the actual total of H-1B visas counted should have been 48,102. Consequently, nearly 25% of the allocated visas were actually still available when the fiscal year ended last week. The INS says they are modifying their tracking system to ensure accurate counting in the future.

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