[Federal Register Volume 64, Number 114 (Tuesday, June 15, 1999)]
[Notices]
[Pages 32151-32153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15034]
Federal Register / Vol. 64, No. 114 / Tuesday, June 15, 1999 /
Notices
[[Page 32151]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS 1993-99]
Information Regarding the H-1B Numerical Limitation for Fiscal
Year 1999
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Notice.
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SUMMARY: This notice explains how the Immigration and Naturalization
Service (Service) 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 exceeds the statutory numerical limit (the cap) of
115,000 H-1B petitions. 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
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 on or before October
1, 1999. This is a stop-gap measure for such aliens in order to prevent
a lapse of status until the Service is able to act on petitions to
change their status.
The Service is also publishing a proposed rule in this issue of the
Federal Register which would require the Service to accept and
adjudicate petitions submitted after the cap is reached in future
fiscal years and to assign to approved petitions a work start date
beginning no earlier than the beginning of the next fiscal year.
DATES: This notice is effective June 15, 1999.
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) of the Immigration and Nationality Act provides,
among other things, that the total number of aliens who may be issued
H-1B visas or otherwise granted H-1B status during Fiscal Year 1999 may
not exceed 115,000. As of April 30, 1999, the Service has recorded
103,753 petitions against the cap for Fiscal Year 1999. As of April 30,
1999, there are 42,376
H-1B cap petitions pending at the four service centers. Since on
average the Service approves 92 percent 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.
Who Is an H-1B Nonimmigrant?
An H-1B nonimmigrant is an alien employed in a speciality
occupation or 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 speciality as a
minimum for entry into the United States.
What Does This Notice Do?
This notice explains the Service's procedure for processing H-1B
petitions for new employment that are filed by employers seeking to
employ H-1B aliens during the remainder of this fiscal year, i.e.,
through September 30, 1999. The process described in this notice is
different from the process the Service used last year for handling H-1B
petitions and applies only to Fiscal Year 1999. The Service intends to
amend its regulations to prescribe the method to be used in handling H-
1B petitions in subsequent fiscal years. In this regard, the Service is
publishing a proposed rule in this issue of the Federal Register,
concerning treatment of petitions filed after the cap has been reached.
In addition, in the near future the Service intends to publish in the
Federal Register a proposed rule to cover other aspects of handling of
H-1B petitions.
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, 1999. 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 H-1B 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, 1999, for employment to commence on or after October 1,
1999. However, as described below, the Service is extending the
duration of status for certain F and J nonimmigrant aliens who are the
beneficiaries of a pending H-1B petition.
What Is the Service's Procedure for Processing H-1B Petitions for New
Employment During the Remainder of This Fiscal Year?
The Service will adjudicate all H-1B petitions for new employment
to commence on or before September 30, 1999, if the petition was filed
before publication of this notice. The Service will not reject a
petition solely because the Fiscal Year 1999 allotment of 115,000 H-1B
numbers has been exhausted. If the cap is reached before the Service
adjudicates a petition, and the petition is otherwise approvable, the
Service will grant the petition with a starting validity date of
October 1, 1999. An alien beneficiary may not begin his or her
employment with the petitioner under the H-1B petition until that date.
Unlike previous years when the cap was reached before the close of
the fiscal year, the Service will not attempt to contact petitioners
individually to advise that the cap has been reached. Rather, the
Service will proceed to adjudicate the petition based on a presumption
that the employer will accept October 1, 1999, 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.
How Will the Service Treat Petitions Received After Publication of This
Notice?
This notice informs the public that there is 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, in keeping with current
practice, will not accept any further H-1B petitions for new employment
to commence before October 1, 1999. These petitions will be rejected
and returned (along with the
[[Page 32152]]
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, 1999, or later. The Service does not anticipate that
it will be required to return a significant number of petitions under
the existing rule.
For Fiscal Year 2000 and beyond, the Service is publishing a
proposed rule in this issue of the Federal Register to amend its
regulations to assign a work start date of no earlier than the
beginning of the following fiscal year for approval petitions which are
filed after the cap is reached. The Service believes that this proposed
rule will benefit the great majority of petitioners by relieving them
from the burden of refiling or resubmitting a new petition once the cap
is reached. The rule would also ensure consistency by providing an
October 1 or later work start date to beneficiaries of petitions filed
and pending before the date of the cap is reached and beneficiaries of
those petitioners filed thereafter.
How Will the Service Adjudicate H-1B Petitioners Pending on the Date of
This Notice?
The fiscal year allotment of 115,000 H-1B numbers is available on a
national basis to qualifying United States employers. As a matter of
fairness to participating employers, the Service has developed
procedures to ensure that petitions will be processed in all four
service centers based on the time of filing and in the same order of
receipt by the Service. Each of the service centers will coordinate
their adjudication of pending H-1B petitions to ensure that petitions
will be processed in order of receipt by the Service irrespective of
the place of filing. The Service is currently adjudicating H-1B
petitions which were filed as late as April 7, 1999. All service
centers will continue to adjudicate petitions having the same priority
date until the cap is reached. 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.
Why Isn't the Service Using the Procedure Adopted Last Fiscal Year To
Process H-1B Cases This Fiscal Year?
The procedure used last year by the Service to process H-1B cases
was overly labor intensive. Service personnel were required to contact
each petitioner and obtain authorization to approve the petition with a
start date of October 1. Further, the vast majority of petitioners
contacted by the Service last year chose the October 1 start date. If
the petitioner declined to postpone the starting date for employment
until October 1, then the Service was required to deny the petition
outright.
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/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, 1999, and the petitioner determines that the date is not
acceptable, the petitioner should notify the Service in writing
immediately so that the Service can revoke the petition and recapture
the number and return it to the pool of unused numbers for Fiscal Year
2000.
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: 202-305-0108. 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 through September 30,
1999, 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, 1999?
No. Those petitions are not affected by the procedures described in
this notice and will be adjudicated in the normal fashion, whether or
not they are currently in the pipeline 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 filed (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. The regulation at 8 CFR 103.2(a)(1)
precludes the refunding of filing fees for petitions filed in behalf of
H nonimmigrant aliens.
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, 1999?
Yes. The Service is amending its regulations by interim rule
(published elsewhere in this issue of the Federal Register) to expand
the definition of duration of status for certain F and J nonimmigrant
aliens whose employers have filed a timely H-1B petition and
application for change of nonimmigrant classification before the cap
has been reached. Data indicates that 60 percent of the H-1B cases
recorded against the cap are for aliens who are changing nonimmigrant
classification to H-1B. The Service estimates that of these, the most
common changes are from F or J to H-1B.
In order to avoid confusion for employers and adverse legal
consequences to certain F and J nonimmigrant aliens, the interim rule
(published elsewhere in this issue of the Federal Register) provides
that the Commissioner may, at any time she determines that the H-1B cap
will be reached prior to the end of the fiscal year, 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
provided in 8 CFR part 248, the alien must not have violated the terms
of his or her admission to the United States in order to qualify for
the change of nonimmigrant status. 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
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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 Immigration and Nationality Act.
When Will the Commissioner Exercise Her Authority To Extend Duration of
Status for This Fiscal Year?
This notice serves to inform the public that the Commissioner, in
her discretion, has exercised her authority under 8 CFR 214.2(f)(5)(vi)
and (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 on or before October 1, 1999, is considered to be in
a valid nonimmigrant status until October 1, 1999, 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 approved the
request for a change of status.
Dated: June 4, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-15034 Filed 6-11-99; 8:45 am]
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