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Viable Options As The H-1B Cap For FY2000 Looms Ahead

November 1, 1999
Related Topics: Immigration, Featured Article
With the start of the new INS fiscal year 2000 on October 1, 1999, the INS has been busily adjudicating H-1B petitions that had been filed in the months following the previous fiscal year’s H-1B cap being reached.

The INS California Service Center indicated last month at a local Bar meeting that INS headquarters was estimating that approximately 22,000 H-1B petitions had already been adjudicated at the four INS Regional Service Centers, and that about 14,000 were still pending adjudication. This means that about 78,000 H-1B visas out of the annual allotment of 115,000 are still available for FY2000. The INS says employers should plan ahead and not delay in filing cases that will be counted toward the H-1B cap.

From a practical point of view, these latest statistics present various options to employers who require foreign national employees to perform professional services for them in the United States.

First, the message from the INS is clear: Do not delay filing an H-1B petition for a candidate, even if they currently hold some other employment-authorized visa status, such as F-1 Optional Practical Training. It is especially important to file the petition if it's foreseeable that the employee may be required for a period longer than that which remains on his or her current F-1 visa and that visa will expire within the year.

This means that employers may have to make determinations about the foreign national employee’s future employment with the company sooner than may have been originally anticipated.

In the past, employers have been able to acquire an extra year of the employee’s services in addition to the up to six years in prospective H-1B status while the employee completed one year of Optional Practical Training with the employer. However, employers may no longer be able to count on that extra year because delays in filing an H-1B petition may result in the H-1B cap being reached prior to petition adjudication.

Second, planning ahead has become critically important for the employer who'll only require the foreign national’s services later on in the year, at which time the H-1B cap may already have been reached.

The Code of Federal Regulations provides that a petition may not be filed or approved earlier than six months before the date of actual need for the foreign national beneficiary’s services.

This means that an employer who requires the services of a particular foreign national in the near future and who was planning to file a case at a later stage should not delay in filing, especially if the position is to be taken up within six months' time.

In such a case, the petition may be filed with a start date for six months time, and in so doing, once approved, the employer has already secured H-1B status for the prospective employee to be activated when the employer needs his or her services six months down the line.

For employers who are introduced to their candidates only after the FY2000 cap is reached, there may be alternative employment-based nonimmigrant visa options that may be used in lieu of the H-1B. Depending on the circumstances, the foreign national’s educational and professional experience, and his or her nationality, there are other visas that may be a temporary alternative to applying for an H-1B visa until the next fiscal year, when the new allotment of H-1B visas become available: TN, L-1A/B, H-3, J-1, E-2.

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