H-1B Visa and Immigration
	LAW OFFICE OF AJAY K. ARORA Empire State Building 350 Fifth Avenue, Suite 7716 New York, NY 10118 Phone: (212)268-3580 Fax: (212)268-3582 Email: info@h1b1.com

UPDATES - Year 2000

2003 | 2002 | 2001 | 2000

December 2000 | October 2000 | August 2000 | July 2000 | June 2000 | March 2000

July, 2000

H-1B CAP IS REACHED

INS has advised AILA that it has reached the 115,000 H-1B limit for fiscal 2000. Only cases filed March 17, 2000 or earlier would have been included in the adjudications for the current fiscal year. INS indicates that 29,500 cap-subject H-1Bs remain to be applied against the fiscal 2001, and that INS will announce procedures to begin adjudication of those cases with an October 1, 2000 start date.

INTERNAL QUESTIONS AND ANSWERS REGARDING H-1B VISA CAP [Questions and Answers courtesy of INS and the American Immigration Lawyers Association]

Q1: Did INS complete processing of all pending petitions for FY 2000? No. INS processed petitions that were complete and filed as of March 17, 2000.

Q2: What happens to H-1B petitions that were filed before March 21, but are still pending? The H-1B petitions that are currently pending at the four Service Centers will be adjudicated in the order of receipt. If a petition is pending when the FY2000 cap is reached, the Service will not reject it. The Service will proceed to adjudicate the petition based on a presumption that the employer will accept October 1, 2000, as the date from which the approved petition is valid and the first date on which the alien may begin employment as an H-1B worker. These petitions will be adjudicated in the order of receipt and recorded against the FY 2001 cap of 107,500.

Q3: What should a petitioner do if the October 1, 2000 start date is not acceptable? The petitioner should notify the Service in writing that it wishes to withdraw the petition. The withdrawal request should specifically state the petitioner's wish to have the case withdrawn and include the receipt number of the case, the company name and the name of the beneficiary. The withdrawal request should be sent via facsimile to the Immigration and Naturalization Service, Immigration Services Division. H-1B Withdrawal Section, Washington, DC, fax number. 202-514-2093.

Q4: Will the Service refund the filing fee if a petition is withdrawn? No. Based on published regulations, the Service cannot refund the filing fee.

Q5: Will the duration of status for certain F and J nonimmigrants be extended? Yes. Any student (F nonimmigrant) or exchange visitor (J nonimmigrant) whose employer has filed a timely petition for change of nonimmigrant status to that of an H-1B nonimmigrant will have his or her duration of status extended either until October 1, 2000 or the date the Service adjudicates the request to change status, whichever is later. This provision also applies to the dependents of the affected F and J nonimmigrants. An F or J nonimmigrant whose duration of status has been extended under this provision may not work. He or she may, however, accept a signing bonus.

Q6: How is INS processing petitions that are not counted against the cap? INS has continued to process FY 2000 non-cap petitions and will continue to do so for the remainder of FY 2000.

Q7: When can a new H-1B petition be filed? An H-1B petition can be filed 6 months prior to the proposed start date of employment. Therefore, the earliest a new petition for employment in FY2001 (with a proposed start date of October 1, 2000) may be filed is April 1, 2000.

Q8: When will INS begin processing for FY 2001? INS expects to begin processing FY 2001 petitions in August.

Q9: How many H-1B cap cases are pending? There are currently 29,500 petitions pending with the INS, and those approved will be recorded against the FY 2001 cap of 107,500.

 

INS HALTS ADJUDICATIONS DURING AUDIT

All INS offices--Service Centers and District Offices--will be conducting an audit in which all pending forms in INS's possession will be inventoried. This will involve opening every file in each office and counting each pending form. The impact of this will be a virtual halt to processing of cases at the Service Centers for at least a couple of weeks, possibly longer. The exception will be permanent residence age-out cases, which will be processed on an "off-line" basis. The impact on the District Offices will vary from district to district, with some offices stating that no cases will be processed for the next month or two.

This is only a "run-through" audit. A similar but smaller scale run-through audit had been conducted in May. The "real" audit will be conducted at the end of September, and therefore a similar processing halt is expected at that time. INS has stated that the purpose of these audits, which are termed deferred revenue audits, is to enable INS to determine the dollar value of items not yet completed in order to try to recapture appropriations from the user fee account to cover the cost of adjudicating the entire backlog of cases.

 

NEW H FORM WOULD REQUIRE BENEFICIARY SIGNATURE

A new version of the H supplement to Form I-129 would require the signature of the beneficiary, as well as the petitioner, attesting to the accuracy of the materials submitted with respect to the beneficiary. The timing for implementation of this form has not yet been announced. Given the logistical problems involved in obtaining such a signature, as well as the legal implications for an individual who signs an attestation with respect to a filing made by someone else, AILA opposed this requirement in its comment on the form and continues to work in opposition to it.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]