9/13/96

H-1B Visa Cap for Fiscal Year 1996

Background

The Immigration and Nationality Act permits nonimmigrant workers to enter the United States to perform services in a specialty occupation which requires a bachelor’s degree or higher, or as a fashion model of distinguished merit and ability. Typical occupations admitted under the H-1B program include architects, engineers, accountants, doctors and college professors, which are limited to 65,000 per fiscal year.

For FY 1996, a preliminary INS statistical report indicated that as of August 20, petition approvals stood at 66,541. Accordingly, INS ordered INS Service Centers to temporarily hold H-1B cases. However, recognizing the importance of the H-1B program to the business community, INS pursued a thorough verification of the statistical report.

Verification of the H-1B statistical report determined that the 1996 H-1b cap had, in fact, not been reached and Service Centers resumed processing H-1B visa petitions on September 6. The following clarifies the verification process.

Verification Steps

* INS created and ran a second statistical report to confirm the data. This second report set initial criteria to ensure that the system counted only clearly appropriate H-1B cases under existing policy. The findings of the second statistical report indicated that as of September 6, petitions approvals stood at 60,227.

* In running the second report from “scratch,” INS discovered that the computer code used for the first report included H-1B cases involving all changes in previously approved employment, not just the filing of a new petition. As a result, approximately 10,500 “duplicates” were identified, including previously approved H-1B visa holders who accepted additional work and those who changed employers. INS determined that these “duplicates” should not be counted against the 65,000 cap.

* On Friday, September 6, INS instructed its Service Centers to resume processing the nearly 5,000 H-1B cases held in abeyance since August 20. INS is monitoring the number of approvals on a daily basis; however, the 65,000 cap is not expected to be reached prior to September 30, 1996, the last day of the fiscal year. A new allotment of 65,000 H-1B numbers will begin on October1, 1996.

New Rule

INS plans to publish a proposed rule explaining its procedures in order to solicit public comment on methods to track petition approval numbers for Fiscal Year 1997. INS will consider all comments to its proposal before formalizing the methods for maintaining and tracking the H- 1B cap for FY97 and beyond.