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(#88-10/01/98)

H-1B Update


Based upon estimates from the INS, as of August 31, 1998 the INS has approved approximately 20,000 H-1B petitions with an October 1, 1998 start date. In addition, approximately 18,000 additional petitions are pending at the INS. Based upon the foregoing information, and absent legislative action by Congress to increase the H-1B cap, it is fairly certain that the current 65,000 cap for fiscal year 1999 (October 1, 1998 to September 30, 1999) will be reached before the end of 1998.

Once the cap s reached, like it was this year on May 11, 1998, applications for initial H-1B status will be placed on hold until either Congress increases the number of H-1Bs, or until the beginning of the next fiscal year, which is October 1, 1999.

Therefore, employers considering hiring aliens in H-1B status should begin INS processing as soon as possible.

 

US Immigration Question:

What if the H-1B cap is reached before my employer files the INS paperwork for my H-1B status?


Answer:

On August 19, 1998, the INS issued a memo on this subject. Briefly, it states that

"The petitions of aliens who seek changes of nonimmigrant status to B-2 or other classifications to await the availability of H-1B numbers will be processed on a case-by case basis pursuant to existing statute, regulation, and policy. The fact that the alien will remain in the United States for the express purpose of awaiting the opportunity to change status to H-1B and accept employment will not, in and of itself, undermine eligibility for visitor status."

For example, an alien who is in F-1 student status and is working under authorized practical training could

  1. request a change of status to B-2 tourist status as long as the alien has not violated the terms of the current F-1 status since last being admitted into the United States,
  2. maintain the current F-1 status by going back to school within the 60 day grace period after practical training expires, or
  3. return to Japan and wait for the H-1B application to be approved.

Please not the following:

  1. Students who wish to remain in the United States in B-2 status are not allowed to work after their practical training expires.
  2. Students who chose the option of going back to school must "climb the ladder" of education. This means that someone who was attending an AA or BA program cannot merely enroll at an English language school.

 

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