SISKIND'S IMMIGRATION BULLETIN - December 7, 1999 Special Issue

[Gregory Siskind, Attorney at Law]

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Siskind's Immigration Bulletin - Special Update on H-1B Processing - 12/07/99

E-mail subscribers as of November 22, 1999: 23,985 persons (50 states/130 
countries).

Published by Greg Siskind, partner at the Immigration Law Offices of 
Siskind, Susser, Haas & Devine, Attorneys at Law; telephone: 800-748-3819, 
901-737-3194 or 615-345-0225; facsimile: 800-684-1267, email: 
[EMAIL PROTECTED], WWW home page: http://www.visalaw.com. SSHD serves 
immigration clients throughout the world from its offices in the US, Canada 
and the People's Republic of China. To schedule a telephone or in-person 
consultation with the firm, go to http://www.visalaw.com/intake.html. 
Writers: Amy Ballentine and Greg Siskind.
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There are several very important developments to report on H-1B processing 
for the current fiscal year.

IS THE CAP ABOUT TO BE HIT?

First, there is a growing concern that the H-1B cap will be hit in the very 
near future. Though Congress raised the H-1B cap from 65,000 to 115,000 for 
the government year which runs from October 1, 1999 to September 30, 2000, 
it is generally believed that the H-1B cap will be hit earlier this year 
than in any year since caps were imposed on H-1B visas under the 1990 
Immigration Act.

The INS has maintained an unprecedented stance of silence regarding H-1B 
usage for the current fiscal year. In previous years, the INS would release 
H-1B numbers on a monthly basis to help the public make appropriate plans. 
According to a report issued by the American Immigration Lawyers 
Association ("AILA"), the only thing the INS will say is that the H-1B 
situation at the agency is basically "a mess." The silence of the agency 
comes despite pressure from Congress to publicize H-1B usage. What is most 
worrisome is an AILA warning to its members that they "should arrange their 
strategies on the assumption that H-1B numbers will cease to be available 
for this fiscal year in the next few weeks." AILA based its warning on the 
INS' silence and emphasized that it was not based on any other information.

AILA's warning runs counter to a statement made in late November by the 
INS. According to Gary Bradford of the INS Immigration Services Division, 
"we are not in danger of running out of H-1Bs in the immediate future." 
Bradford made the statement during an interview in which the question was 
raised about rumors the cap would be hit before December ends.

If the cap is hit soon, it is still not clear whether that will be due to 
an INS miscount last year on H-1B usage. In our October 1999 issue, we 
reported that the INS had confirmed that it "miscalculated" the number of 
H-1B visas it issued during fiscal year 1999 and may have issued as many as 
20,000 more than the 115,000 allotted for the year. This came after the 
agency has been repeatedly criticized for its failures to properly track 
the number of H-1B visas it issues. For example, in 1997 Sen. Spencer 
Abraham (R-MI) asked the agency to re-check the number issued, and was told 
thousands of visas were double counted, meaning the agency announced the 
annual cap was reached when in fact it was not.

The INS' response to its theory that 20,000 additional visas were issued 
was to suggest that 20,000 fewer visas be issued this year. This proposal 
was severely criticized by Sen. Abraham. In a letter to INS Commissioner 
Doris Meissner, he questioned the Service's claims, pointing out that the 
agency stopped accepting new H-1B applications in June, over two months 
before the end of fiscal year 1999. He also reported that several companies 
whose H-1B usage was made public said the INS inflated their numbers by two 
to four times, arguing that the numbers used had never been accurately 
counted. Finally, the Senator expressed doubt that it was within the 
statutory authority of the INS to make the decision to compensate for one 
year's mistake by removing available visas allocated to the next year. He 
added that if such authority existed, it would be as appropriate to take 
visas from years when the cap was not reached and use them against any 
over-issuance that may have occurred in 1999.

The INS has confirmed that at this time it would not seek to rescind any of 
the visas given last year and that an audit would be conducted to determine 
how many H-1B visas were improperly issued. To date, the INS has not 
indicated how it would treat the overcount.


INS TEMPORARILY HALTS H-1B PROCESSING

In a related development, INS Headquarters has ordered the four regional 
service centers to halt H-1B processing for cases subject to the H-1B cap 
that were filed after October 25, 1999. The INS has indicated that they are 
doing this to bring the four service centers closer to being even in the 
number of H-1B approvals issued. Also, the INS believes this will give the 
agency's data contractor a chance to get a handle on overall H-1B usage. 
The INS has emphasized that this does not mean the cap is being reached and 
they will halt processing on a monthly basis if necessary.


HOW TO STAY INFORMED

Over the past two years, SSHD has posted an H-1B Emergency Update to keep 
the public informed on the latest developments in H-1B processing. We are 
reviving this page again and it can be accessed at 
http://www.visalaw.com/h1bpage.html. We will post the latest information on 
H-1B usage, how to determine if your case is subject to the H-1B cap, what 
your options are if the cap is hit and what is going on in Washington to 
deal with the problem.