File H-1B petitions early to avoid cap woes
Published 08/01/00

In order to meet their needs for skilled employees, many employers, particularly in the high technology area, rely on H-1B visas to allow them to employ skilled workers who are not United States citizens. There are, however, only a limited number of such visas available each fiscal year. The Immigration and Naturalization Service (INS) announced on July 20, 2000 that all H-1B visa case processing has been completed for fiscal year 2000, which ends on September 30, 2000. The INS had announced several months ago that the cap was likely to be reached, and on March 21, 2000, INS announced that it would stop accepting H-1B visa petitions for fiscal year 2000 because there was a sufficient number of petitions pending to reach the 2000 cap of 115,000. Since that time, INS has processed the pending petitions and has recorded 115,000 approved petitions against the cap for this year.

For fiscal year 2001, which begins on October 1, 2000, INS will be permitted to issue only 107,500 H-1B visas. INS has stated that there are currently about 29,500 petitions pending with the INS, and those approved will be recorded against the fiscal year 2001 cap of 107,500. If all of these petitions were approved, this would leave only about 78,000 H-1B visas available for fiscal year 2001. Some estimates indicate that there are over 500,000 vacancies in high technology jobs throughout the United States, and as a result, those remaining 78,000 H-1B visas are likely to be used very quickly. There are several bills pending in Congress to increase the H-1B cap, but to date none of those proposals have become law.

INS has stated that in August, it will begin processing petitions for H-1B workers whose employment will start on or after October 1, 2000. For cases filed with a start date prior to October 1, 2000 that were not approved so far because of the H-1B cap, INS will 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 may begin employment as an H-1B worker. These petitions will be recorded against the FY 2001 cap of 107,500 H-1B visas. If an employer has an H-1B petition pending and an October 1, 2000 start date is not acceptable, the employer should withdraw the application in writing.

Because the limited numbers of H-1B visas available in fiscal year 2001 will likely be exhausted very quickly, employers who are interested in obtaining an H-1B visa for a new employee should get their application filed as soon as possible. An H-1B petition can be filed up to 6 months prior to the requested start date, so even if an employer does not need the employee to start before Jan 1, 2001, the petition could be filed now. Doing so is the best way to assure that the petition can be approved without running into problems with the H-1B cap.

The attorney who wrote this article is no longer at the law firm of Hamblett & Kerrigan, P.A. in Nashua. Other practitioners at the firm handle work in the same areas of law which he worked in, which included employment law, family law, and general litigation, including property tax abatement and personal injury.You can reach one of those lawyers by calling the law firm (883-5501) or by e-mail at info@nashualaw.com .

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