H-1B Cap Re-Cap
Date: September 16, 1996
From: Office of Benefits
To: Regional Directors
All District Directors
All Officer-in-Charge
All Service Center Directors
The purpose of this memorandum is to provide you with an update on the numerical limitation on the H-1B nonimmigrant classification.
As you are aware, the statute limits the number of aliens who may be granted visas or otherwise accorded H-1B status to 65,000 per fiscal year. Since the Department of State has no data base to track the H-1B visas that it issues, the INS agreed to track H-1B usage by counting the number of approved H-1B petitions in any given fiscal year though CLAIMS. While this tracking mechanism is not totally accurate, it is the best mechanism available to either agency.
On August 20, 1996, HQBEN ran a report which indicated that the H-1B usage had reached 66,541 for this fiscal year at which point instructions were given to the four service centers to hold H-1B cases in abeyance so that the count could be verified. To confirm the data, a second statistical report was created which set criteria to ensure that the system was only counting what was clearly appropriate under existing policy. The findings were as follows:
H-1B Count
Available for fiscal year 65,000
FY 96 usage - August 20th preliminary report 66,541
September 5 revised report 60,227
In running the second report it was discovered that the code for the first computer generated report included amended petitions, petitions involving a change in the previously approved employment. Counting these types of cases was an inadvertent accounting problem in the first report and was clearly inconsistent with cap parameters. Without these cases, it was determined that we were 4,773 below the cap. As a result on Friday September 6, the centers were instructed to resume processing H-1B cases.
The preliminary indication that the cap had been exceeded generated significant discussions with respect to the types of cases which the INS was counting. After consulting with General Counsel’s office and appropriate organizations within INS, several minor adjustments to the tracking methodology were adopted.
First, revocations were subtracted from the count. It was determined to back out the petition approvals which were revoked during the same year the petition was approved since the foreign workers did not work as H-1B nonimmigrant aliens. To illustrate the impact of this change, the September 6 report indicated that the INS had revoked 1,511 H-1B petitions.
The second modification stems from a minor shift in methodology and policy. The methodology that was previously used to track H-1B usage actually counted positions and not aliens. The prior methodology counted concurrent employment. i.e., where an alien holds two H-1B positions at the same time, as well as sequential employment where the alien moves from one H-1B position to another. After consulting with the Office of General Counsel, it was determined that the intent of the status was to count H-1B foreign workers admitted, not H-1B positions. Under the prior tracking mechanism, a foreign worker was counted twice and, based upon legislative history, it is now the opinion of this office that the count should not include these two situations.
The table below illustrates the impact of these modifications on the total H-1B count.
Revocations identified for current FY 1,511
Concurrent new employment for the current FY 593
Sequential employment identified this FY 10,021
By deducting the sum of the above numbers from the 60,277 total from the September 6 report, we arrive at a total H-1B usage of 48,102 for fiscal year 1996 as of September 6, 1996.
The standardize the new process for next fiscal year we plan on modifying CLAIMS to track H-1B numbers by the validity date of the petition and not as we currently do by approval dates. Tracking the validity dates of the petition allows us to more accurately count H-1B usage in a given fiscal year. A proposal rule will be published explaining our procedures in order to solicit public comment on the proper way to track the numbers.
Michael L. Aytes
Assistant Commissioner