INS H1B Processing Update
Posted Nov 20, 1999

As of October 28, 1999, INS reports that all four Service Centers are processing H-1B petitions for which receipts were issued in late August and early September 1999. INS is trying to maintain a uniform processing time for H-1Bs at all its four (4) Service Centers. However, as we at The Law Office of Sheela Murthy, P.C., and many of you may have observed, the Vermont Service Center (VSC) tends to be faster than the other INS Service Centers, and the California Service Center remains the slowest.

In fact, in our tour and meeting with VSC senior officials, including with the Service Center Director and the supervisors of the different sections at VSC on September 27, 1999, we were advised that the VSC has over 300 companies for which VSC has sole jurisdiction for processing all their cases from all over the U.S. This is different from the other Service Centers which have less than one quarter of VSC's load in terms of companies requesting processing with the Service Center as the sole processing location for all of the company's operations.

From time to time, the Law Office of Sheela Murthy, P.C. has been requested to provide an opinion about the item in the news media about the excess H1B Petitions issued by the INS in the last fiscal year (1998-99) and how this with impact upon the issuance of H1B Petitions for this fiscal year (1999-2000).

There has been some confusion with the Immigration and Naturalization Service (INS) having possibly issued an excess of 10,000-20,000 H-1B petitions for the fiscal year 1999. A U.S. Senator has criticized the INS for having miscalculated the number of H1B Petition approvals and for now considering the possibility of reducing the number of H-1B Petiton approvals for the coming fiscal year 2000 (October 1, 1999 until September 30, 2000).

First of all, the important points to keep in mind with this entire situation and the reason no one should feel really too alarmed is as follows :

a. INS is not sure of the exact number of H1B Petitions that may have overissued in the previous fiscal year. Assuming that the count proves that the numbers are in excess of 10,000 or 20,000, it should not be a big deal. The rumors floating around and as mentioned in a major publication in early October 1999 that the INS could now notify companies and individuals that their H1B employees could be sent back home, seems implausible. There would be a lawsuit by many firms and appropriate response by organizations like the American Immigration Lawyers Association (AILA) and others, since there are serious constitutional concerns in giving a right or a property interest and then taking it back.

b. The total number of H-1B Visas that can be issued for this coming fiscal year is 115,000 which is well in excess of the 65,000 that we had all been originally thinking of for the last several years. Assuming the INS can prove that there was a miscalculation on their part, one is talking about a reduction from 115,000 to 105,000 or, in the worst scenario to about 95,000 for new H-1B Petition approvals for this fiscal year. That is the absolute worst scenario.

c. Please keep in mind that many of you will not be subject to the H-1B cap at all because, as we have mentioned in the June 1999 edition of The Law Office of Sheela Murthy Bulletin, the following categories are not subject to the H-1B cap or quota:

• Those already on H-1B status with a different employer
• Extension with the same employer
• Concurrent H1B for another employer

Those changing status within the U.S. or applying from a consular post abroad and who may not have been on an H1B within the past 6 months could be subject to the H1B cap.

There is no statutory or legal basis for the INS to be able to borrow 10,000 or 20,000 H-1B Petitions from the previous fiscal year to this fiscal year. Under law, the INS is not allowed to issue the excess H-1B Petition approvals and their error should not adversely affect either the U.S. employer, the foreign national, or allow INS to cover up their mistake by "borrowing" from this fiscal year.

I suspect that if they really look into it, though, most of the excess H1B approvals are probably not in excess at all because the INS seems to double count in the following cases, even though the intention of the law was not to count the same person twice :

(i) The Nebraska Service Center has been counting as new H1Bs, against the annual H1B cap, when an employer checks off that the H1B is for "new employment" on Form I-129, the form which is required for filing the H1B Petition. The other Service Centers do not count against the cap if the person is on H1B status already since that was the intention of the law.

(ii) Where a person who is abroad, or in a different status, files through several different employers, for H1B Petitions, the INS counts it as separate persons for the H1B counting purposes. So, for example, when a person who is on student or visitor status applies for 3 or 4 H1B Petitions with different employers, the INS counts each Petition approval, against the H1B cap. Clearly, this was not the intention of the U.S. Congress when the H1B cap was introduced. It was meant to apply against individuals.

Despite rumors floating around in cyberspace, INS has not issued any information on the count of H-1B petitions approved for the current fiscal year, 1999-2000. At a recent liaison meeting with representatives of the American Immigration Lawyers Association ("AILA"), INS representatives were either unable or unwilling to provide us with even approximate figures. Of course, the Law Office of Sheela Murthy, P.C. will update, at our website (www.murthy.com), when we have a final confirmation and resolution of this matter.