[Federal Register Volume 64, Number 114 (Tuesday, June 15, 1999)]
[Proposed Rules]
[Pages 32149-32150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15033]



  Federal Register / Vol. 64, No. 114 / Tuesday, June 15, 1999 / 
Proposed Rules  

[[Page 32149]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 2003-99]
RIN 1115-AF47


Treatment of Certain H Petitions Filed After the Numerical Cap Is 
Reached

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rules.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service's (Service) regulations by allowing the Service to accept and 
adjudicate certain petitions submitted after any of the annual 
numerical caps for H nonimmigrants have been reached. Under this 
proposed rule, petitions that are approved would be assigned a work 
start date to begin no earlier than the beginning of the following 
fiscal year. This rule is intended to benefit the great majority of 
petitioners by relieving them from the burden of refiling a new or 
amended petition once the H numerical cap is reached.

DATES: Written comments must be submitted on or August 16, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 
20536. To ensure proper handling please reference INS No. 2003-99 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Sandra Schatz, Acting Branch Chief, 
Management and Records Liaison, Immigration Services Division, 
Immigration and Naturalization Service, 801 I Street, NW., Room 980, 
Washington, DC 20536, telephone (202) 616-7991.

SUPPLEMENTARY INFORMATION:

Background

    Section 214(g)(1)(A) of the Act sets a cap on the total number of 
aliens who may be provided H-1B nonimmigrant classification during any 
fiscal year. This section of the Act applies to ``new'' H-1B petitions, 
as explained in a Service Notice which is being published elsewhere in 
this issue of the Federal Register. In addition, section 214(g)(1)(A) 
of the Act sets annual numerical limitations for certain other H 
nomimmigrants. Under the Service's current regulations at 8 CFR 
214.2(h)(8)(ii)(E), once the total numbers available to a particular H 
nonimmigrant classification have been used in a fiscal year, the 
Service must reject any new petition for that classification which 
contains a request for a work start date prior to October 1 of the 
following fiscal year, and refund to the petitioner the accompanying 
fee. Under current regulations, such a petitioner may not employ the 
alien as a new H nonimmigrant in the remaining portion of the fiscal 
year. To employ the alien as a new H nonimmigrant, the petitioner is 
required to file a new petition to request a work start date on or 
after October 1 of the following fiscal year, when numbers once again 
become available.
    On December 30, 1997, the Service proposed to amend 8 CFR 
214.2(h)(8)(ii)(E) to enable the Service, in its discretion, to adopt 
mechanisms other than rejection of petitions filed after the cap had 
been reached. See 62 FR 67764 (December 30, 1997). The purpose of the 
proposed change was to prevent unnecessary hardship to petitions and to 
avoid unnecessary work by the Service in situations where rejecting 
petitions was deemed not to be prudent. Id. The December 30 proposal 
did not discuss whether any petitioner may be adversely affected by the 
proposal. The December 30 proposal was not published as a final rule.
    The Service received three comments regarding this specific 
proposal in the December 30 rule. All three commenters applauded the 
Service's proposal to change the method used to process H petitions 
filed after the numerical cap is reached in a fiscal year.

Why Is the Service Proposing This Change to Its Regulations?

    In the case of H-1B petitioners, it has been the experience of the 
Service that the great majority of petitioners whose petitions were in 
the ``pipeline,'' (i.e., on file with the Service) at the time the 
numerical cap had been reached, in fact, have opted for a start date on 
or after October 1 of the following fiscal year rather than to withdraw 
their petitions. For Fiscal year 2000 and beyond, therefore, the 
Service is proposing to assign a work start date of no earlier than 
October 1 of the following fiscal year for certain petitions which are 
filed after the numerical cap is reached. Specifically, petitions which 
contain a request for a work start date prior to the beginning of the 
following fiscal year will be assigned an October 1 or later start 
date, regardless of the work start date requested in the petition. The 
Service believes that this proposal will benefit the great majority of 
petitioners by relieving them from the burden of refiling or submitting 
a new petition once the cap is reached. This proposal would also ensure 
that petitions filed after the cap is reached are treated similarly to 
those petitions that were not adjudicated when the numerical cap was 
reached.
    In light of the above, the Service believes that only a relatively 
small number of petitioners might not wish to have an October 1 or 
later work start date. Accordingly, the Service believes that the 
current proposed rule is preferable to its earlier proposed regulation 
which failed to take into account that the great majority of 
petitioners actually have preferred that the Service assign an October 
1 work start date in order to avoid additional handling.

Could Any Petitioners Be Adversely Affected by This Proposed 
Regulation?

    The Service recognizes that certain H-1B petitioners might not wish 
to be assigned an October 1 or later work start date, and may therefore 
be adversely affected by this proposed regulation. Under the current 
regulation, the Service would reject such employers' petitions and 
accompanying fees. The proposed regulation, however, would require the 
Service to accept all petitions, together with filing fee, for 
adjudication and processing, regardless of the petitioner's requested 
work start date. Although certain petitioners may not wish to avail 
themselves of a work start date later than they requested, they would, 
under this proposal, forfeit their filing fee. the Service believes, 
nevertheless, that this proposal will benefit the great majority of 
petitioners by relieving them from the burden of refiling the petition 
once the numerical cap is reached.
    The Service notes that this proposed regulation would also apply to 
certain other H petitioners, should the respective numerical caps ever 
be reached. To date, however, none of the other visa classification 
caps have ever even been approached. for this reason, the Service does 
not anticipate that this proposal would have any immediate impact on 
the other H programs. The Service welcomes comments concerning this 
proposed regulation.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
Accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this proposed regulation and, by approving it, certifies that 
this rule will not have a significant economic

[[Page 32150]]

impact on a substantial number of small entities because of the 
following factors: The proposed procedures are intended to minimize 
burdens to the great majority of employers who use the H nonimmigrant 
visa program by removing the requirement to refile a new or amend 
petition once the numerical cap is reached. In addition, this proposed 
rule would ensure consistent treatment of all petitioners whose 
petitions have not been adjudicated by the time the numerical cap has 
been reached in a fiscal year by assigning all of them an October 1 or 
later work start date. This proposal may cause inconvenience, however, 
to certain petitioners who might not wish to accept an October 1 or 
later work start date.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any 1 year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Act of 1996. This rule will 
not result in an annual effect on the economy of $100 million or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This proposed rule is considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget (OMB) for review.

Executive Order 12612

    The regulation proposed herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and (b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

    Accordingly, part 214 of chapter I of title 8 of the Code Federal 
Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR Part 2.

    2. Section 214.2 is amended by revising paragraph (h)(8)(ii)(E) to 
read as follows:


Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (8) * * *
    (ii) * * *
    (E) The Service shall continue to accept for adjudication any new 
petition containing a request for a work start date prior to the 
beginning for the following fiscal year, together with the accompanying 
fee, even if the total numbers made available in a fiscal year have 
been used. If the petition is approved, the Service will grant the 
petition with a starting date no earlier than October 1 of the 
following fiscal year, regardless of the work start date requested in 
the petition.
* * * * *
    Dated: June 4, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-15033 Filed 6-11-99; 8:45 am]
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