The INS estimates that as of December 9, 1997, the number of new H-1B petitions counting against the 65,000 H-1B cap is 13,700. The pace of 6,000 visas per month is again ahead of the pace for H-1B availability and will likely again lead to a summertime moratorium on H-1B issuance.

Employers considering filing an H-1B application for a new employee should be very cautious with respect to the deadlines and file H-1B applications earlier than the summer if possible.

As noted in our Legislative Update feature, raising the cap on H-1B visas is a top legislative priority of business immigration advocates for 1998. As news on this issue develops, we will provide the information to our readers.

On December 30, 1997, the INS released a proposed rule relating to the method by which the INS determines if the count has been met. The INS noted that by counting concurrent employment and sequential employment as separate items in the 65,000 count, it was actually counting positions, and not aliens. The INS has abandoned its prior procedure and no longer counts either sequential or concurrent employment in the same fiscal year towards the numerical limitations. The numerical limitations would now relate solely to individuals regardless of the number of H-1B or H-2B positions such persons hold.

The INS will also subtract from its figures revoked petitions. Hopefully, employers, would-be beneficiaries and immigration lawyers will remember to have petitions revoked when it is clear that a former employee will definitely not be using the visa anymore.