INS Approves COS to H1B for Cases Filed in FY98 & Subject to Cap
Posted Oct 18, 1998

Many persons filed for change of status from F1 or B1 etc. to H1B status earlier this year and ended up in legal limbo because they were subject to the 1998 H1B cap which was met earlier this year in May 1998. A person who agreed to an October 1, 1998 start date for the H1B Petition was able to obtain the H1B petition approval but the INS denied the change of status within the U.S. for whose previous status expired prior to October 1, 1998. The INS had agreed that the H1B petition would be approved prospectively as of October 1, but there would be a gap in status, and the person would have to proceed abroad to obtain an H1B visa, as has been explained in earlier Immigration Law Bulletins of the Law Office of Sheela Murthy.

Now that fiscal year 1999 has begun on October 1, 1998, persons in the above situation who are still waiting for INS to render a decision on the H1 petition may reap a benefit from the INS delay. For any cases decided on or after October 1 , 1998, the INS has issued a Memorandum that it is likely to approve the change of status to H1B without mandating that the person has to travel abroad merely to get back into status. For those who have waited several months for the INS to make a decision and had filed while still in status in May 1998 or earlier this year, there is at least a silver lining if they do not have to now travel abroad merely to get back into status.