 VISA SPOTLIGHT: H-1B CAP REACHED
What we have been predicting would happen all spring has finally become official: the H-1B visa cap has been reached, and no more H-1B visas will be issued until October 1, 1999. As of April 30, the INS had issued 103, 753 visas, with 42, 376 petitions pending at the four service centers. Only 115,000 visas were available. On June 15th, the INS announced the cap was effectively reached and issued a rule and a notice addressing some of the steps it will take in light of this development.
These rules apply only for new H-1B visas sought for new employment. Applications filed by current H-1B visa holders will continue to be processed and are not affected by the visa cap. Such applications include petitions to extend stay, to amend the terms of employment, to allow a change in employer, and to allow a job transfer.
Of great interest to those who have an H-1B petition before the cap was reached and who are still waiting are the differences in the length of time it takes the different service centers to adjudicate petitions. The INS is going to make every effort to ensure that the service centers coordinate their adjudications so that each petition is resolved in the order in which it was filed, regardless of where it was filed. As of June 15, petitions that were filed on April 7 were being adjudicated.
This leaves petitions currently on file that requested an employment date before October 1 for which a 1999 H-1B visa will not be available. For these petitions, the INS is taking a more sensible route than it did in the same situation last year. Last year, these applications were rejected and returned to the petitioner. This year, the INS will treat the petitions as requesting a starting date of employment on October 1, adjudicate them, and if approved reserve a fiscal year 2000 H-1B visa for the beneficiary. If the petitioner is unwilling to accept an October 1 start date, they should call the INS and withdraw the petition. Similarly, if the petition was favorably adjudicated but October 1 is unacceptable, the petitioner should notify the INS so that visa may be returned to the pool of available H-1B visas for fiscal year 2000.
To notify the INS that a petition should be withdrawn, the employer should fax a withdrawal request to the INS, Immigration Services Division, H-1B Withdrawal Section, at (202) 305-0108. The fax should contain the receipt number, the names of both the petitioner and beneficiary, and be signed by the petitioner or an authorized representative. The INS will not refund fees submitted with withdrawn petitions.
After publication of this notice the INS is no longer accepting H-1B petitions for which the starting date of employment is before October 1, 1999. These petitions will be rejected and returned, along with the filing fee. The Service is still accepting petitions with a starting date of employment after October 1, 1999. These petitions will be adjudicated in the standard fashion, whether filed after this notice or in the pipeline currently but not counted toward the 1999 visa cap.
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