H-1B & H-2B Non-Immigrant Visa Numbers and Usage

The Immigration Act of 1990 (IMMACT), among other things, imposed a 65,000 annual numerical limitation on the number of aliens who may be granted H-1B visas or accorded such status in a fiscal year and a 66,000 annual numerical limitation on the number of aliens who may be accorded H-2B status. The Immigration and Naturalization Service (INS)agreed to track the number of aliens accorded H-1B and H-2B status since the Department of State (DOS), the agency which issues non immigrant visas to aliens, has no centralized database to track visa issuance.

The INS is revising its methods of tracking the H-1B and H-2B petitions. This proposed rule is in response to a number of queries from the public asking how the INS determines which H-1B and H-2B petitions are included in the 65,000 cap each fiscal year. This rule hopes to reduce some of the confusion regarding the INS’s method of counting H-1B and H-2B petitions.

This rule proposes to amend the INS regulations by explaining in detail the new method by which the INS tracks the number of H-1B and H-2B petitions approved in a fiscal year (October 1-September 30)and by removing incorrect references in the regulation regarding the tracking mechanism.

The most significant observation that the INS made with respect to its current tracking system was that, by counting concurrent employment and sequential employment, it was actually counting positions, and not aliens. The INS has reconsidered its prior procedure and no longer counts either sequential or concurrent employment in the same fiscal year towards the numerical limitations. The numerical limitations would now relate solely to individuals regardless of the number of H-1B or H-2B positions such persons hold.

The present regulation currently provides that, in the event that the numerical limitation is reached in a fiscal year, the INS shall reject any new petitions which are filed with a notice that numbers are not available until the next fiscal year. The proposed rule modifies the regulatory language by enabling the INS to notify the public through the publication of a notice in the Federal Register of any new procedure should such a situation arise.

DATES: Written comments must be submitted on or before March 2, 1998 in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference the INS number 1805- 96 in your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

Approved H-1B and H-2B petitions which are subsequently revoked by the INS will not be counted in the numerical limitation. The INS will run a periodic report containing the number of revoked petitions and adjust the numerical count accordingly. INS has provided a very rough calculation of H-1B usage until December 9, 1997. This number appears to be 13,700, but has not been manually reviewed and adjusted for the possible inadvertent inclusion of extensions with the same employer (which do not count against the cap). Based upon current usage, it is expected that the H-1B cap could very well be reached sometime during the summer of 1998.

It is therefore important that companies/petitioners notify the INS as soon as they learn that the beneficiary of an H-1B or H-2B petition does not intend to accept the petitioner’s offer of employment.

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