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H-1B CAP NEWS: INS REMAINS SILENT ON OVERISSUANCE OF H-1B VISAS IN 1999
[Readers following the H-1B cap issue closely may be interested in the H-1B Emergency Update page at the SSHD web site (http://www.visalaw.com/h1bpage.html). Longtime visitors to our site may recall that that section of our web site has been one of the most complete and up-to-date sources of news during previous H-1B cap crises.] 
A computer malfunction at the INS resulted in the accidental issuance of 20,000 more H-1B visas than the law allows during fiscal year 1999.  Along with adding ammunition for those who believe the INS must be reorganized, this mistake has also added to the politicization of the H-1B program.  As our readers know, the H-1B program, which provides temporary work visas for skilled foreign workers, has been the subject of many intense political debates.  The counting mistake by the INS and how the agency will deal with it are likewise the subject of much debate. 
However, the debate is occurring without much guidance from the INS, which has remained almost completely silent on the issue.  When the news of the extra visas first came out, some within the INS suggested the extra visas issued last year would be accounted for by reducing this year’s allotment by 20,000.  This proposal met with criticism from nearly all fronts, most notably the office of Senator Spencer Abraham (R-MI), which issued a strong letter to the INS disputing its authority to make such a decision.  
While the INS has not issued any formal announcement with regard to the overcount, its silence is seen by some as equal to a statement.  The American Immigration Lawyer’s Association is taking the agency’s silence to mean the extra visas issued last year will be counted against those allotted for this year.  According to AILA, based on this assumption, all H-1B visas available for fiscal year 2000 could be used before the year 2000 even begins.  While this is not a certainty, employers and employees should be prepared to file H-1B petitions as soon as possible to avoid the cap should it be reached early than expected. 
In related news, the INS has instructed the four Service Centers to temporarily stop processing new H-1B petitions so that the Centers will be closer together in their processing times, and so that the agency will have a better idea of how many petitions have been approved.  The agency is emphasizing that this move is not an indication that the cap is about to be reached, but only an attempt to improve their counting accuracy.  If the temporary halt has the desired effect, the agency may implement it on a monthly basis.