Time Runs Out for Consideration of H1B Compromise Bill
Posted Aug 19, 1998

Final action has not yet been taken on the H1B compromise bill described in the July 27, 1998 Bulletin of the Law Office of Sheela Murthy. The House of Representatives had other urgent business, including appropriations bills, to consider prior to its August recess, and there was no time remaining for consideration of the H1B legislation. Congress will reconvene in early September 1998 after the Labor Day holiday. Further action on the compromise bill will have to wait until then.

Employers and other interested parties who wish to make their voices heard on this legislation should contact their Representatives in their home districts during the Congressional recess. If you need help, contact the Advocacy Department of the Law Office of Sheela Murthy, so that we can guide to the appropriate person in your State. For all employees, please do suggest that your employers contact their representatives if you have any desire in the passage of the Bill to increase the H1B quota and address the other issues of concern for them.

In a Memorandum dated August 19, 1998, the INS has clarified certain important issues pertaining to H1B applicants:

a. The INS will approve the change of status for an H1B applicant who was lawfully admitted to the United States as a nonimmigrant, has maintained legal status since admission, and satisfies the requirements of his or her status. Accordingly, the beneficiary of an I-129 petition to grant H1B status and change nonimmigrant status to H1B must be in valid nonimmigrant status both when the petition is filed and on the date on which the requested status change becomes effective, i.e. on or after the date on which new H1B numbers become available for FY98, which at the present time is likely to be October 1, 1998.

If that H1B applicant's authorized period of admission will expire prior to October 1, 1998, or the date from which the petitioner has requested commencement of H1B employment and from when FY99 H1B numbers are available, the INS will NOT approve the change of status within the U.S. since not merely is maintenance of valid status required but also the availability of an H1B visa as of the employment start date.

It is important to understand that the INS may approve the H1B Petition but require the applicant to travel abroad to obtain an H1B visa stamp in the passport in order to start working legally on H1B status if there is a gap from the last day of status and the H1B start date.

b. F-1 foreign students and J-1 exchange visitors admitted for duration of their approved programs (D/S) who are provided with a 60 day and 30 day grace period respectively following optional practical training, will obtain change of status within the U.S. provided that such H1B applicants have completed their education and otherwise complied with the requirements of the status.

c. When the H1B applicant is deemed to be in unlawful presence, the start date for triggering unlawful presence both for applying for the visa at a consulate and for the 3 or 10 year bars start for a person who is out of status when INS adjudicates the file, as of the date of adjudication prior to October 1, 1998, while the event triggering unlawful presence for an H1B applicant whose status will expire between the date of the adjudication and October 1, 1998, is the prospective expiration of status prior to October 1, 1998. For the 3 year bar, the 120-day tolling period may provide some relief in certain cases.

d. The INS has advised that those H1B applicants who seek a change of status to visitor (B-2) or some other nonimmigrant classification in order to await the availability of an H1B number will be processed on a case-by-case basis pursuant to existing laws. Merely because an H1B applicant is awaiting the H1B number should not disqualify the person from obtaining, for example, visitor status.

Although we do not have any good news to report with respect to the H1B Legislation, the Law Office of Sheela Murthy has learnt from a leading newspaper in India that the U.S. Consulates in India have decided to allow H1B employees who have an H1B Petition approval starting from October 1, 1998 to apply for the H1B visa anytime after August 10, 1998. This decision was made to avoid the Consulates from being overwhelmed on or around September 21, 1998, the date from which such H1B employees can enter the U.S. on the H1B visa with a start date of October 1, 1998.