The University Record, April 10, 2000

Update on H-1B visas cap status

From the International Center and the U-M Washington, D.C., Office

The Immigration and Naturalization Service (INS) published a notice in the Federal Register March 21 announcing that there are a sufficient number of H-1B petitions pending at the four service centers to reach the cap of 115,000 for fiscal year 2000.

Amended petitions, petitions for extension of stay, and petitions for aliens already in H-1B status (i.e., petitions filed on behalf of an H-1B alien by a new or additional employer) are not subject to the cap, and are therefore not affected by the notice. A detailed summary of the notice follows.

Pending cases filed before March 21, 2000—Treatment until the cap is reached

The Federal Register notice states that as of Feb. 29, there were enough cap-subject approvals and pending cases to reach the FY 2000 cap. INS will continue to adjudicate pending petitions until 115,000 approvals are issued.

As of Feb. 29, 74,300 petitions were recorded against the cap, and 45,000 additional H-1B petitions were pending at the service centers. Pending cases filed before March 21 will continue to be adjudicated until there are 115,000 recorded approvals. Typically, INS is capable of adjudicating approximately 10,000 cases per month, so it may take up to three or four months before the 115,000 cap is actually reached.

On average, INS denies 10 percent of the petitions filed, and it is possible that not all of the 45,000 pending petitions are subject to the cap. To a limited extent, INS service centers have pre-screened these cases to determine if they are cap-subject, but they will not know with certainty if the cases should be counted against the cap until they adjudicate them.

INS is now adjudicating cases filed as late as Jan. 31. Therefore, cases pending as of March 21 have a relatively high likelihood of being adjudicated with approvals for this fiscal year, and it is conceivable, though improbable, that INS may not reach the cap with the cases currently in the pipeline. The notice does not address this possibility.

Cases pending as of March 21 after 115,000 approvals are recorded

After 115,000 approvals are recorded, cases pending as of March 21 will be adjudicated based on the presumption that employers will accept Oct. 1, 2000, start dates. If this date is unacceptable, let your immigration adviser know as soon as possible, and we will notify INS so that the petition can be withdrawn or revoked, whichever is applicable. INS has established a process whereby petitions can be withdrawn if not yet approved, and that allows already-approved petitions to be revoked so that the numbers can be recaptured.

Cases filed on March 21 and after

Cases filed on March 21 or after requesting start dates before Oct. 1, 2000, will be rejected and returned, along with the filing fee. Such a petition may, however, be sent back to the INS with a request that it be adjudicated with an Oct. 1, 2000, start date. Cases filed requesting start dates on or after Oct. 1 will be accepted, and may be submitted to INS no earlier than April 1, 2000.

F and J nonimmigrants

The notice extends the duration of stay for certain F and J nonimmigrants (students and exchange visitors) if their employers file a timely request for change of nonimmigrant status to that of an H-1B nonimmigrant, provided that the petition is filed before Oct. 1. The notice defines “timely filed” as filed prior to the expiration of the alien’s period of authorized stay in the United States. Such persons may not work for the petitioning employer, or engage in other activities inconsistent with their current status, but may accept a hiring bonus prior to Oct. 1, 2000. The extension of stay provision also applies to the dependents of F and J nonimmigrants.

Overall outlook

It is probable that most currently pending cases will be approved for the current fiscal year, though it is possible that more recently filed cases could be held over for Oct. 1 start dates.

INS will continue to adjudicate cases in the order in which they are received, so it is advisable to continue to file H-1B cases in the event that INS has overestimated the number of cap-subject cases in the pool of pending cases, and is in a position to adjudicate cases filed after March 21.

There is a lot of interest in the United States Congress, and legislation to increase the cap is being consider by both the Senate and House.

The Senate Judiciary Committee recently passed S.2045, the Hatch-Abraham “American Competitiveness in the Twenty-first Century Act of 2000.” The bill gives a permanent exemption from the cap to universities, research facilities and graduate degree recipients (a person who a petition is filed not more than 90 days before or not more than 180 days after the nonimmigrant has attained a master’s degree or higher from an American institution of higher education). S.2045 is expected before the full Senate in mid-April.

There are two bills in the House addressing the issue. H.R. 3814, the “Technology Worker Temporary Relief Act” introduced by Rep. Lamar Smith (R-TX), and H.R. 3983, “Helping to Improve Technology Education & Achievement Act (HI-TECH Act)” introduced by Rep. David Dreier (R-CA), Rep. Zoe Lofgren (D-CA) and 20 co-sponsors, including Rep. Joe Knollenberg (R-MI).

Only the HI-TECH bill addresses the needs of higher education. The legislation would raise the

H-1B visa cap to 200,000 for each of the next three years and reserve 10,000 of the annual total for universities and research facilities.

The University’s Washington, D.C., Office has been working with the Michigan congressional delegation to ensure passage of S. 2045 and H.R. 3983. For further information contact Cindy Bank, Federal Relations Officer, or (202) 554-0578.