INS on FY98 H-1B Cap Gap
Service Center Directors From: Michael A. Pearson
Executive Associate Commissioner
Field Operations
Subject: Change of Status for D/S Beneficiaries of Timely Filed Petitions Subject to the FY98 H-1B Cap
Purpose: Clarify issues raised by the public since the May 12, 1998, Federal Register notice.
BackgroundThe Federal Register notified the public that the 65,000 limitation on the H-1B nonimmigrant classification (cap) had been reached for fiscal year 1998 (FY98). The notice advised that H-1B petitions filed on or after that date, for new employment commencing prior to October 1, 1998, would be rejected. With regard to H-1B petitions pending adjudication on May 12, 1998, the notice advised that the Service would notify the petitioner or attorney of record that the cap had been reached and present the option to withdraw the petition or delay the date of the beneficiary’s intended employment until new H-1B numbers become available on October 1, 1998, the beginning of fiscal year 1999 (FY99)
Issues and Discussion
1. Under what circumstances 8 CFR 248 will — and will not — permit change of status to H-1B for eligible beneficiaries of timely filed petitions whose status has expired prior to the availability of FY99 H-1B visas on October 1, 1998.
Discussion: Section 248 of the Immigration and Nationality Act generally authorizes the Attorney General to grant a change of nonimmigrant status in the case of an alien who was lawfully admitted to the United States as a nonimmigrant, has maintained that status since admission, and meets the requirements of the new status. Accordingly, the beneficiary of an I-129 petition to grant H-1B status and change nonimmigrant status to H-1B 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 H-1B numbers become available for FY98 (e.g. if Congress raises the FY98 cap or INS revokes approved H-1B petitions based on FY98 numbers) or FY99 numbers become available on October 1, 1998.
Conversely, a change of status is not approvable unless the classification to which the alien seeks to change is available to the alien at the same time. For example, even if the beneficiary of an H-1B petition subject to the FY98 cap is in status as of the date on which INS adjudicates the Form I-129, change of status will be denied if that alien’s authorized period of admission will expire prior to the date on or after October 1, 1998, on which the petitioner has requested commencement of H-1B employment and on which FY99 H-1B numbers are available. In other words, a nonimmigrant seeking to remain in the United States and change status to H-1B must meet two criteria: maintenance of valid status and availability of an H-1B visa as of the employment start date. When either or both of these criteria is not met, change of status cannot be approved.
An exception to this general rule arises where the beneficiary falls out of status while the timely filed petition is awaiting adjudication. With respect to the current H-1B cap situation, for example, the provision at 8 CFR 248.1(b)(1) will maintain the status of an beneficiary whose H-1B status and change of status are not adjudicated by the Service until on or after the date on which FY99 H-1B numbers become available.
On the other hand, Section 248 will NOT reinstate lawful status in a case where there is a gap between expiration of the H-1B beneficiary’s status and any date prior to October 1, 1998, on which the I-129 may be adjudicated for an employment start date using FY99 H-1B numbers. Where an adjudicator is aware that the beneficiary’s status has expired, or will have expired by the H-1B effective date, change of status will be denied even if the petition is approved on its merits.
As noted in the May 12, 1998, notice, H-1B petitions requesting October 1, 1998, start dates will be adjudicated in turn at the Service Centers. The Service will not hold I-129 petitions in abeyance to serve the purpose of beneficiaries whose status has expired and wish to remain in the United States and regain status, nunc pro tunc, under Section 248.1(b)(1). This provision will apply only in those cases where Service Center backlogs will not accommodate adjudication prior to October 1, 1998.
2. Whether aliens admitted for duration of their status (D/S) may be granted change of status during the "grace periods" available to them at the conclusion of their approved nonimmigrant stays in the United States.
Discussion: The status of F-1 foreign students and J-1 exchange visitors admitted for duration of their approved programs (D/S) includes the respective 60- and 30-day grace periods following optional practical training, provided that those aliens have completed their approved programs and otherwise abided by the requirements and limitations of their nonimmigrant classifications. Forms I-129 naming beneficiaries in D/S classification will be accepted throughout their lawful durations of status. Likewise, changes of status will be approved for D/S nonimmigrants throughout their durations of status as long as the duration of status includes the effective dates of the new H-1B employment (see item #1 above).
3. Whether, and under what circumstances, unlawful presence accrues pursuant to INA Sections 212(a)(9)(B) and/or 222(g), for beneficiaries NOT covered by 8 CFR 248 whose change of status to H-1B were denied because they remained in the United States beyond their periods of authorized admission.
Discussion: The triggering events for purposes of both of these statutory provisions are the same: overstay of admission period and/or violation of status. With respect to overstays, however, the triggering events differ for nonimmigrants admitted for a time certain and those admitted for D/S. For nonimmigrant aliens admitted for a time certain period, overstay begins to accrue on the status expiration date stamped on the Form I-94. For D/S aliens, overstay begins to accrue upon the finding of an immigration judge or an adjudication by INS revealing a status lapse.
Under a common H-1B cap scenario, for example, an F-1 beneficiary of a timely filed H-1B petition has remained in the United States after completion of the 60-day period following his or her approved optional practical training, with the result that he or she will not be in lawful status as of the October 1, 1998, effective date for FY99 H-1B employment. Since an alien must be in lawful status on the effective date of a change of status, and since a change of status for beneficiaries of H-1B petitions subject to the FY98 cap cannot be approved until FY99 H-1B numbers become available on October 1, 1998, INS will deny the change of status from F-1 to H-1B if the adjudication occurs during the gap between the end of the grace period and October 1, 1998.
Under this general scenario, unlawful presence for purposes of Sections 222(g) and 212(a)(9)(B) occurs on one of two dates. Where denial of change of status is based upon the alien’s presence in the United States beyond the period of authorized stay as of a date of adjudication prior to October 1, 1998, the event triggering unlawful presence has occurred as of the adjudication date. Alternatively, where denial of change of status is based upon the fact that the alien’s duration of approved status will expire between the date of the adjudication and October 1, 1998, (when FY99 numbers will become available), the event triggering unlawful presence is the prospective expiration of status prior to October 1, 1998.
Under either of these scenarios, unlawful presence is triggered and Sections 222(g) and 212(a)(9)(B) now apply to the D/S nonimmigrant. The consular visa under which he or she, who has been denied change of status to H-1B as beneficiary of an approved H-1B petition, was admitted to the United States is voided automatically by force of law, meaning that he or she must return to the country or nationality to obtain the H-1B visa unless an individual exemption applies. Likewise, to the extent not covered by the 120-day tolling period, the clock will start ticking for purposes of the 3-year bar under Section 212(a)(9)(B)(iv).
4. Whether the Service will create new policies or procedures to accommodate aliens who have filed for a change of nonimmigrant status in order to wait for H-1B numbers to become available in FY-99.
Discussion: The petitions of aliens who seek changes of nonimmigrant status to B-2 or other classifications to await the availability of H-1B numbers will be processed on a case-by-case basis pursuant to existing statute, regulation, and policy. Section 248 of the Immigration and Nationality Act generally authorizes the Attorney General to grant a change of nonimmigrant status in the case of an alien who was lawfully admitted to the United States as a nonimmigrant, has maintained that status since admission, and meets the requirements of the new status. The fact that the alien will remain in the United States for the express purpose of awaiting the opportunity to change status to H-1B and accept employment will not, in and of itself, undermine eligibility for visitor status.
5. Whether the Service will respond to potential legislation increasing the FY98 H-1B cap by developing special policies or procedures to accommodate petitioners who filed H-1B petitions that missed the cap and elected to request adjudication of an October 1, 1998, start date.
Discussion: Unless the legislation provides otherwise, if Congress increases FY98 H-1B numbers, petitioners who missed the original cap and requested employment start dates of October 1, 1998, must file amended petitions, including fees, in order to take advantage of earlier employment start dates.