The U.S. Immigration and Naturalization Service (INS) announced June 15 that the H-1B cap effectively had been reached. The H-1B is a temporary non-immigrant status granted by the INS to a non-U.S. citizen or resident, that requires theindividual to have an offer of a professional level or specialty job requiring at least a bachelors degree. This status is available for a maximum of six years, not to exceed three years at a time.
The cap refers to the numerical limitation of H-1B visas available per federal fiscal year. For fiscal year 1999, the limit was 115,000. The new federal fiscal year begins Oct. 1, and H-1B applications requested for that start date will be processed in the order of receipt.
Recognizing the problems encountered by the higher education community and other employers due to the exhaustion of the H-1B slots, INS has offered limited relief in the form of new policies.
Under the new interim rule, foreign students (F-1) and exchange visitors (J-1)except those subject to the two-year residency requirementwho have applied for a change of status to H-1B will have their duration of status automatically extended pending adjudication of the petition. In order for an F-1 or J-1 alien to qualify for an extension of status, the individual must have filed a timely request for a change of status to H-1B, the cap must have been reached during the current fiscal year and the person must have maintained the terms of admission to the United States. Please note that this provision of duration of status does not include work authorization.
Unlike last year, INS will not contact the petitioner before providing an Oct. 1 start date. Petitioners who do not want an Oct. 1 start date may withdraw the petition. However, the $110 filing fee will not be refunded.
Petitions filed on or after June 15 for FY1999 that request a start date before Oct. 1 will be returned to the petitioner with the fee. The petitioner may refile the petition at any time, requesting a start date on or after Oct. 1.
These rules apply only to petitions for new H-1B employment. Applications for a change of employers for current H-1B workers, extensions of H-1B status or concurrent H-1B employment are not affected by the cap.
The International Center has been in touch with departments since early March, providing information and advice regarding the cap. Most departments have found other options to enable them to retain or hire new foreign faculty and staff. Departments that need to hire a non-U.S. citizen for fall term 1999 should contact the International Center for options. For information, call 763-4081.