INS Notice that FY1998 H-1B Cap Reached
[Notices]
[Page 25870-25871]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11my98-97]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS 1926-98]
Fiscal Year 1998 Numerical Limitation Reached for H-1B Nonimmigrants
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Notice.
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SUMMARY: The Immigration Act of 1990 (IMMACT), provided that beginning with fiscal year 1992, the total number of aliens who may be issued visas under the H-1B category during any fiscal year could not exceed 65,000. Based on all available data, the 65,000 limit has been reached for fiscal year 1998. This notice describes the procedures the Service will use for processing H-1B petitions for new or initial employment in the remainder of fiscal year 1998.
DATES: This notice is effective May 11, 1998.
FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-3240.
SUPPLEMENTARY INFORMATION:
Background
Section 205 of the Immigration Act of 1990 (IMMACT), Public Law 101-649, dated November 29, 1990, imposed a 65,000 numerical limitation beginning in fiscal year 1992 on the number of aliens who could be accorded H-1B nonimmigrant status in a fiscal year.
The regulation at 8 CFR 214.2(h)(8)(ii)(E) provides that ``If the total numbers available in a fiscal year are used, new petitions and the accompanying fee shall be rejected and returned with a notice that numbers are unavailable for the particular nonimmigrant classification until the beginning of the next fiscal year.''
Which H-1B Petitions Will Be Affected by This Notice?
H-1B petitions filed for new or initial employment for the remainder of fiscal year 1998 will be affected by this notice as well as petitions pending with the Service on the date of this notice.
[[Page 25871]]
Which H-1B Petitions Will Not Be Affected by This Notice?
Petitions filed for sequential H-1B employment, concurrent H-1B employment, extension of H-1B stay, and amended H-1B petitions are not affected by this notice.
Sequential employment is where an alien assumes one H-1B position after another. For example, an H-1B chemist completes his or her assignment with ``Company A'' and then assumes a new position the very next day as an H-1B chemist with ``Company B''.
Concurrent employment is where an alien holds two H-1B positions at the same time. For example, an H-1B computer system analyst works for ``Company A'' full-time during the week and works for ``Company B'' part-time on the weekends.
An extension of stay is where the alien's current employer submits a petition to extend the alien's temporary stay.
An amended petition is where there has been a change in the conditions of the alien's employment, but the alien remains employed by the same petitioner.
How Will H-1B Petitions Submitted For New or Initial Employment for Fiscal Year 1998 be Processed?
Based on 8 CFR 214.2(h)(8)(ii)(E), the Service will return, with fee, any H-1B petition filed with the Service on or after the date of this notice for new or initial employment in fiscal year 1998. The petitioner will be advised in a notice to either resubmit the petition when numbers are available on October 1, 1998, or to resubmit the petition and request employment commencing on or after October 1, 1998.
In the case of those petitions pending with the Service on the date of this notice, the Service will contact the petitioner or the attorney of record and advise him or her that the 65,000 limit has been reached. The petitioner will then be given the option of either withdrawing the petition or requesting that the Service change the date of the beneficiary's intended employment to on or after October 1, 1998, the beginning of fiscal year 1999, when H-1B numbers will again become available.
How Will H-1B Petitions Submitted For New or Initial Employment Beginning in Fiscal Year 1999 be Processed?
H-1B petitions filed for employment commencing on or after October 1, 1998, which is the beginning of fiscal year 1999, are not affected by the procedures described in this notice and those petitions will be adjudicated when received by the Service.
What Will Happen if the Numerical Limitation is Raised by Congress?
The Congress is currently considering whether to raise the numerical limit for fiscal year 1998. The procedures described in this notice will be modified if the limit is raised through legislation enacted by the Congress and signed by the President.
Dated: May 6, 1998.Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-12448 Filed 5-8-98; 8:45 am]
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