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HEARD ON THE STREET - H-1B, LABOR CERTIFICATION DEVELOPMENTS
The INS reports that the pace of H-1B usage for the current fiscal year is moving at a fast pace and it is extremely likely that, like the last two years, there will be a period of time when visas are not available.
As of January 31, 1999, 70,471 H-1B petitions had been approved for fiscal year 1999. The FY99 cap is 115,000. This total includes the 19,431 petitions counted toward 1999 that were approved between May 11,1998 (when last year's cap was reached) and October 1, 1999 (when the new fiscal year began). 
Thus far, the INS has not reported on the effect of the new $ 500 fee on the number of filings. Because the INS expects filings to at least temporarily decrease after the DOL issues interim final regulations implementing the H-1B program, the agency cannot now make an accurate prediction about whether or when this year's cap may be reached.
Congress enacted the American Competitiveness and Workforce Improvement Act (ACWIA) last year to increase the H-1B cap for the next three fiscal years; in FY99 and FY00 the cap is 115,000, in FY01 the cap is 107,500, after which time the annual cap will return to 65,000. In passing the law Congress did not consider the predicted use of the program, and it is entirely possible that this years cap of 115,000 may be reached within the next few months.
Siskind, Susser, Haas & Devine has received reports, however, from reliable sources that there has been a recent and massive surge in the number of H-1B visas filed largely as a result of mass filings for Indian technology workers by recruiting and consulting firms. While concrete numbers are not available, if these reports are true, it is entirely conceivable that all numbers will be used up possibly as early as the beginning of May - earlier than in 1998 when only 65,000 visa were available.
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Major changes may be coming in the way labor certification cases are handled. Two seismic developments are in the works. First, the DOL is planning on a massive effort to clear the huge backlog of cases nationally and is expecting to approve half of the pending cases in the next several months. Second, the DOL is expected to gut a major aspect of GAL-97 largely in response to a lawsuit the agency is fighting which challenges the process by which GAL-97 was adopted. One key process that is expected to go is the requirement that in normal labor certification cases, if special requirements are listed in Box 15, then the case is automatically referred to the regional DOL office for clearance before advertising instructions may be granted. DOL places the lowest priority on these referrals and someone can find themselves waiting for a year or more just to clear up this question. The DOL now plans to change this and allow applicants to advertise without the prior clearance from the regional DOL or the State Employment Security Agency. 
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While the DOL is getting ready to roll out automated "one minute" labor condition application processing in H-1B cases, one of the busiest Regional DOL offices in the country - San Francisco - has not been processing LCAs in several weeks. A computer glitch is to blame and a restart date is not yet known.