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NEW INS MEMORANDUM ON “NEW EMPLOYMENT” FOR H-1B WORKERS
On December 9, 1999, the INS sent a memorandum to the four Service Centers outlining the proper procedure for filing in Part 2 of Form I-129.  The procedures stated in this memo differ in some substantial ways from the practice of most immigration attorneys, so the memo may have a significant impact.  
Form I-129 is used for most temporary work visas, including the H-1B.  Part 2 of the form allows the petitioner to list the basis upon which the requested classification is sought.  It is the section of the form that the INS uses to track the number of H-1B visas issued each year, so it is not surprising that the agency wants to clarify procedures for completing this section.  
The petitioner is allowed four types of employment classification: 
New employment 
Continuation of previously approved employment without change 
Change in previously approved employment 
New concurrent employment 
Only cases involving new employment count toward the annual cap, and not all of those are counted.  Cases involving new employment where the employee already holds an H-1B visa are not counted against the cap.  
The INS says it is working on the creation of a new version of Form I-129 that will make keeping track of the number of visas issued easier, but until then it will use the current version. 
This announcement also raises questions of whether the confusing form has led to the INS over counting H-1B usage for years. It is widely agreed that many immigration lawyers and HR professionals have routinely been incorrectly completing the form to indicate an application is subject to the cap. The INS’ need to review all of these cases may also explain why the agency is unable to release any statistics on H-1B usage.