[Federal Register: March 21, 2000 (Volume 65, Number 55)]
[Notices]               
[Page 15178-15180]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21mr00-92]                         

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS 2049-00]

 
Information Regarding the H-1B Numerical Limitation for Fiscal 
Year 2000

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Notice.

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SUMMARY: This notice explains how the Immigration and Naturalization 
Service (the Service/INS) will process H-1B petitions for new 
employment for the remainder of this fiscal year now that it is clear 
that the demand for H-1B workers will exceed the statutory numerical 
limit (the cap) of 115,000 H-1B petitions for Fiscal Year 2000. This 
notice is published so that the public will understand the Service's 
procedure for processing H-1B petitions, as the procedure may affect 
the business decisions of some prospective H-1B petitioners. These 
procedures are intended to minimize the confusion and burden to 
employers who use the H-1B program, reduce the administrative burden at 
the Service Centers, and eliminate the need for employers to inquire 
about the status of pending H-1B petitions.
    This notice also serves to inform the public that the Commissioner 
of the INS is exercising her authority under 8 CFR 214.2(f)(5)(vi) and 
(j)(1)(vi) for this fiscal year to extend the duration of stay for 
certain F and J nonimmigrants (students and exchange visitors) if their 
employer has filed a timely request for change of nonimmigrant status 
to that of an H-1B nonimmigrant alien and the petition was filed before 
October 1, 2000. This measure will prevent a lapse of status for these 
aliens before the Service is able to act on petitions to change their 
status.

DATES: This notice is effective March 21, 2000.

FOR FURTHER INFORMATION CONTACT: Tracy Renaud, Adjudications Officer, 
Immigration Services Division, Immigration and Naturalization Service, 
801 I Street, NW, Room 980, Washington, DC 20536, telephone (202) 305-
8010.

SUPPLEMENTARY INFORMATION:  

What is an H-1B nonimmigrant?

    An H-1B nonimmigrant is an alien employed in a specialty occupation 
or as a fashion model of distinguished merit and ability. A specialty 
occupation is an occupation that requires theoretical and practical 
application of a body of specialized knowledge and attainment of a 
bachelor's or higher degree in the specific specialty as a minimum for 
admission into the United States.

What is the cap or numerical limitation on the H-1B nonimmigrant 
classification?

    Section 214(g) of the Immigration and Nationality Act (the Act) 
provides that the total number of aliens who may be issued H-1B visas 
or otherwise granted H-1B status during Fiscal Year 2000 may not exceed 
115,000. As of February 29, 2000, the Service has recorded 74,300 
petitions against the cap for Fiscal Year 2000. As of February 29, 
2000, there are more than 45,000 H-1B cap petitions pending at the four 
Service Centers. Since on average the Service approved 90 percent (90%) 
of the H-1B petitions it receives, there now appears to be a sufficient 
number of H-1B petitions pending at the four Service Centers to reach 
the cap for this fiscal year. Therefore, as of [Date of publication in 
the Federal Register], the Service will reject any petitions requesting 
a start date prior to October 1, 2000.

What is the effect of this action?

    This notice explains the Service's procedure for processing H-1B 
petitions for new employment that are filed by

[[Page 15179]]

employers seeking to employ H-1B aliens during the remainder of this 
fiscal year, i.e., through September 30, 2000. The process described in 
this notice is similar to the process the Service used in the fiscal 
Year 1999 for handling H-1B petitions after the cap had been reached.
    The Service also published a proposed regulation at 64 FR 32149 on 
June 15, 1999, that described the method that it would use in handling 
H-1B petitions in subsequent fiscal years. This notice contains the 
same language as in the proposed rule.

Does this procedure apply to all H-1B petitions filed for this 
fiscal year?

    No. The procedure described in this notice relates only to H-1B 
petitions filed for new employment to commence on or before September 
30, 2000. A petition for new employment includes a petition where the 
alien beneficiary is outside the United States when the H-1B petition 
is approved or where the alien is already in the United States and is 
seeking a change of nonimmigrant status to an H-1B nonimmigrant alien.
    Amended petitions and petitions for extension of stay are not 
affected by this procedure because these petitions do not count against 
the cap. Likewise, petitions for aliens in the United States who 
already hold H-1B status, i.e., petitions filed on behalf of an H-1B 
alien by a new or additional employer, are not affected by this 
procedure. This procedure does not relate to petitions filed before 
October 1,2000, for employment to commence on or after October 1, 2000.

What is the Service's procedure for processing H-1B petitions for 
new employment during the remainder of this fiscal year?

    This notice inform the public that there are a sufficient number of 
H-1B petitions pending at the four Service Centers to reach the cap of 
115,000 for this fiscal year. The Service will not accept for 
adjudication any H-1B petition for new employment containing a request 
for a work start date prior to October 1, 2000. These petitions will be 
rejected and returned (along with the filing fee) to the petitioner 
according to 8 CFR 214.2(h)(8)(ii)(E). However, such petitioners are 
free to refile those petitions with a new starting date of October 1, 
2000, or later.
    The Service will not reject a pending petition when the Fiscal Year 
2000 allotment of 115,000 H-1B numbers has been exhausted. Just as in 
Fiscal Year 1999, 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 beneficiary may begin employment as an H-1B 
worker.
    It must be noted that the Service received favorable comments from 
the public on this procedure when it was first implemented in Fiscal 
Year 1999. In view of these favorable comments, the Service will 
continue to use the same process this fiscal year.
    Each Service Center will coordinate their adjudication of pending 
H-1B petitions to ensure that all petitions will be processed in order 
of receipt by the Service Center irrespective of the place of filing. 
The Service is currently adjudicating H-1B petitions which were filed 
as late as January 20, 2000. Thereafter ``pipeline'' cases (petitions 
filed prior to the date the cap was reached) will be adjudicated in the 
order of receipt, but will be assigned a work start date of October 1 
of the new fiscal year or later.

What should a petitioner do if the October 1 start date for 
employment is not acceptable?

    If the petitioner is unwilling to wait until the October 1 start 
date for employment of the H-1B alien and the Service has not yet 
adjudicated the petition, the petitioner should notify the Service in 
writing that he or she wishes to withdraw the petition. As noted below, 
the Service cannot refund the filing fee in such cases.
    If the Service has approved a petition for work to begin as of 
October 1, 2000, and the petitioner determines that the date is not 
acceptable, the petitioner should notify the Service is writing 
immediately so that the Service can revoke the petition and recapture 
the number and return it to the pool of unused numbers of Fiscal Year 
2001.

How should a petitioner notify the Service that it wishes to 
withdraw a petition?

    If a petitioner wishes to withdraw a pending H-1B petition or an 
approved H-1B petition for new employment, the petitioner should fax a 
withdrawal request to the Immigration and Naturalization Service, 
Immigration Services Division, H-1B Withdrawal Section, Washington, DC, 
fax number: 202-514-2093. The request should be signed by the 
petitioner or authorized representative and include the filing receipt 
number and the names of both the petitioner and beneficiary. Employers 
seeking to request withdrawal of an H-1B petition should use this fax 
number and special procedure.

Does this process apply to H-1B petitions filed for employment to 
commence on or after October 1, 2000?

    No. Those petitioners are not affected by the procedures described 
in this in this notice and will be adjudicated in the normal fashion, 
regardless of whether they are pending as of the date of this notice or 
filed after this year's cap is reached.

How will the Service process petitions that are revoked?

    The Service will subtract revocations of any H-1B petitions for new 
employment from the total H-1B count in the fiscal year for which the 
new employment was approved. After the petition is revoked, the case 
number will be sent to the Immigration Services Division (ISD) where 
the number will be recaptured for use. The number will then be 
forwarded by ISD to a Service Center to be assigned to a pending 
petition. Priority will be given to approved petitions in the order 
they were received (e.g., petitions that were originally denied but 
subsequently ordered approved by the Administrative Appeals Office).

Will the Service refund a filing fee if a petition is withdrawn or 
revoked?

    No, the Service will not refund either the $110 filing fee or the 
additional $500 filing fee imposed by the American Competitiveness and 
Workforce Improvement Act of 1998 when a petition is revoked. The 
provisions contained in 8 CFR 103.2(a)(1) preclude the refunding of 
filing fees on I-129 petitions in this situation. The Service will 
refund a filing fee only if the filing of the petition was a result of 
Service error.

Will the Service allow certain F and J nonimmigrant aliens who are 
the beneficiaries of H-1B petitions to remain in the United States 
until they can change their status to H-1B on or after October 1, 
2000?

    Yes. The Service published an interim rule in the Federal Register 
of June 15, 1999, at 64 FR 32146 that amended its regulations to expand 
the definition of duration of status for certain F and J nonimmigrant 
aliens whose employer has filed a timely H-1B petition and application 
for change of nonimmigrant classification.
    The interim rule provided that the Commissioner may extend the 
duration of status, by notice in the Federal Register, of any F or J 
nonimmigrant alien whose employer has filed a timely petition for 
change of nonimmigrant status to that of an H-1B nonimmigrant as 
described in 8 CFR part 248,

[[Page 15180]]

provided the alien has not violated the terms of his or her admission 
to the United States, at any time the Commissioner determines that the 
H-1B cap will be reached prior to the end of the fiscal year. This 
extension shall continue for such time as is necessary for the Service 
to approve a petition changing the alien's status to H-1B in the 
following fiscal year. An alien whose duration of status has been 
extended by the Commissioner under these regulations (and who continues 
to adhere to the other terms of the alien's F and J status) is 
considered to be maintaining lawful nonimmigrant status for all 
purposes under the Act.

When will the Commissioner exercise her authority to extend 
duration of status for this fiscal year?

    This notice informs the public that the Commissioner has exercised 
her discretionary authority under 8 CFR 214.2(f)(5)(vi) and 8 CFR 
(j)(1)(vi) for this fiscal year. Accordingly, any F or J nonimmigrant 
whose employer has filed a timely request for change of nonimmigrant 
status to that of an H-1B nonimmigrant alien whose petition was filed 
or will be filed before October 1, 2000, is considered to be in a valid 
nonimmigrant status until October 1, 2000, or until the date the 
Service adjudicates the change of status application. Pursuant to 8 CFR 
248.1(b) and 214.1(c)(4), the term ``timely filed'' refers to an 
application for a change of nonimmigrant status filed prior to the 
expiration of the alien's period of authorized stay in the United 
States. This provision also applies to the dependents of the affected F 
and J nonimmigrant aliens. An alien affected by this provision may not 
work for the petitioning employer or otherwise engage in activities 
inconsistent with the terms and conditions of the alien's nonimmigrant 
classification prior to the date for which the Service approves the 
request for a change of status.

May an F or J nonimmigrant whose stay is extended under this 
provision accept a hiring bonus before October 1, 2000?

    Yes. An F-1 or J-1 nonimmigrant alien may receive a signing bonus 
before the validity date of the H-1B petition. A signing bonus does not 
represent a salary or a reimbursement for services rendered and, as a 
result, may be accepted by the alien.

Does the Fiscal Year 2000 cap include the cases that the Service 
approved in excess of the cap in Fiscal Year 1999?

    No. Any cases that the Service may have approved in excess of the 
Fiscal Year 1999 cap were not counted against the Fiscal Year 2000 cap. 
While the numerical cap for the H-1B visa category was exceeded in 
Fiscal Year 1999, the Service has not yet conclusively determined the 
exact amount of that discrepancy. The Service will publish a future 
notice in the Federal Register addressing how these cases will be 
treated once the exact amount of the H-1B discrepancy in Fiscal Year 
1999 has been determined.

    Dated: March 14, 2000.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-7074 Filed 3-17-00; 2:20 pm]
BILLING CODE 4410-10-M