H-1B Cap Employee Frequently Asked Questions
April 9, 2009 - USCIS Announced it had received approximately 20,000 petitions for U.S. Masters, which exhausted that exempt category, but all applicants (U.S. Masters and others) can still use the approximately 20,000 numbers left after only 42,000 petitions were received against the 58,200 cap (we state this number since 65,000 must be reduced by the number of Chile and Singapore H-1B1 petitions). Read the USCIS Update.
April 8, 2009 - USCIS announced today that it will continue to accept H-1B petitions subject to the cap, indicating that the cap has not been met. This should also mean that all those who filed within the initial 5 business days should be accepted, and no random lottery should be conducted this year for those initial filings!
USCIS Answers Immigration Lawyers Assocation Questions:
Could USCIS provide any estimate as to the number of petitions already received?
Answer: USCIS estimates that they have received approximately half of the petitions needed towards the general H-1B cap, and that they are just short of reaching the number of petitions needed towards the Master's cap.
2. When will the 15-day clock start for petitions filed under premium processing?
Answer: The 15 calendar day period started on April 7, 2009.
3. When will receipts start being issued for cap-subject petitions?
Answer: Receipts are being issued as of April 8, 2009.
4. There have been reports of some petitions being erroneously receipted prior to April 8, 2009. Is there any reason for concern?
Answer: No, since the H-1B cap has not yet been reached, these petitions will all be counted towards the H-1B cap. Receipts previously issued remain valid. USCIS will be reviewing the internal process for receipting petitions.
March 31, 2009 - ICE Updates on Cap Gap regulations, and makes it clear previous year guidance applies. On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. The changes made by this rule became effective upon publication of the rule.
One provision of the rule applies to F-1 students who are the beneficiaries of a pending or approved H-1B petition that is subject to the annual cap. The IFR automatically extends the F-1 status and, for students in a period of approved post-completion OPT when the H-1B petition is filed, the OPT employment authorization. For further information, see the Student and Exchange Visitor Program’s (SEVP) Policy Guidance 0801-01, Updates to Post-Completion Optional Practical Training, on cap gap provisions.
The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, on page 3. This document serves as proof of continued employment authorization. The automatic extension of an F-1 student's duration of status and employment authorization is terminated upon the rejection, denial, or revocation of the H-1B petition filed on the F-1 student's behalf.
Student Responsibilities
A student who is eligible for the cap-gap extension must work with a designated school official (DSO) at the student’s school to receive an updated Form I-20. If a student is eligible for the cap-gap extension of OPT, the student can continue to work while the update to his or her Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.
Archive of 2008 FAQ
Q1 - If I am being sponsored by my employer for an H-1B Cap number this year, and I have not previously been given H-1B status, when is the earliest that I can begin work on an H-1B?
A1 - If you are subject to the H-1B Cap, the earliest start date available is October 1, 2008. Please note that if approved for that start date, a period of 10 days prior to October 1, 2008 can be requested on the H-1B visa through the State Department, to allow the H-1B visa holder to enter 10 days before the start date to take care of moving and other incidental activities. During this 10 day period, however, no work is allowed.
Q2 - When can my Cap-subject petition for H-1B be filed?
A2 - If you are subject to the H1-B Cap, your H-1B petition must be received at the correct USCIS Service Center between April 1, 2008 and April 7, 2008. This is the expanded filing window recently announced by USCIS.
Q3 - What happens if my H-1B petition is received at the correct USCIS Service Center during the H-1B Cap filing window?
A3 - All properly filed H-1B petitions subject to the H-1B Cap received during the filing window will be entered into a random lottery if the number of petitions filed exceeds the Cap. The Cap on H-1B numbers for those holding U.S. Master's Degrees is 20,000, and the Cap for all others is 58,200 (65,000, minus 1,400 set aside for H-1B1 petitions for nationals of Chile, and minus 5,400 set aside for H-1B1 petitions for nationals of Singapore). USCIS has announced that it will calculate the number of U.S. Master's numbers received first, applying the first numbers to those petitions, then move to the general Cap.
Q4 - What chance do I have of being selected for an H-1B number?
A4 - If you hold a U.S. Master's Degree (defined as a Master's Degree conferred by a U.S. Institution of Higher Education, not just an equivalent foreign degree), then you have a chance at the first 20,000 numbers. Last year, the U.S. Master's numbers were not exhausted on the first day. Some believe that the U.S. Master's numbers will be used up during the initial filing period. If that is the case, then any U.S. Master's applicants who are not selected in the lottery will be placed in the general pool for a second lottery. If you do not hold a U.S. Master's Degree, then your chances are probably less than 50%. Last year, there were approximately 119,000 petitions received for the 58,200 slots.
Q5 - If my case is filed using Premium Processing, is my case treated differently?
A5 - Premium Processing, involving the filing of I-907 with $1,000 filing fee, entitles the petition to be adjudicated within 15 days of receipt. If the adjudication results in a Request for Evidence (RFE), then an additional 15 day period begins when the evidence is received by USCIS. For H-1B Cap filings this year, USCIS has advised that the 15 day period will begin after the random lottery has been conducted. Therefore, total processing time will be considerably longer than usual for Premium Processing. As we have described elsewhere on this website, Premium Processing may have some advantages over regular processing, but we do not believe that it will increase the chances of receiving a number in the random lottery.
Q6 - After my H-1B Cap petition is filed, when can I expect to find out the status of my case?
A6 - We estimate that it will take between 30-90 days for the lottery to be conducted. Although it will probably be closer to 30 days, there may be many more cases received this year than last year, and it may take USCIS longer than last year to review and organize them for the lottery. This is just an estimate. Once the lottery is concluded, a receipt notice (Form I-797) should be issued, or for those not selected, a rejection package should be sent with the forms and checks uncashed. If a receipt notice is not issued, and a rejection package not received within this time period, the status may be found by reviewing the back of the canceled check to see if there is a receipt notice.
Q7 - I am an F-1 student on Optional Practical Training (OPT) work authorization, and my H-1B petition was submitted within the filing window. My OPT expires prior to October 1, 2008. What is the status of regulations to extend OPT to "bridge the gap" between the OPT expiration and the H-1B start date?
A7 - Regulations issued April 8, 2008 by the DHS agency which oversees F-1 students, Immigration and Customs Enforcement (ICE), authorize OPT extension for F-1 students on OPT who are selected in the lottery for an H-1B, but who will experience a gap between the OPT and the start date of the H-1B (October 1, 2008). The regulation, however, requires the petition to have requested "change of status", a selection that very few petitioners would have elected, since there was a gap between OPT expiration and the H-1B start date. Because ICE issued the regulation, we believe that ICE was not aware of the procedural and timing issues involved, and that USCIS (the agency responsible for accepting and adjudicating H-1B petitions) will further clarify a reasonable method for petitioners who did not request change of status (and instead selected consular processing) to change their selection to change of status. IMPORTANT UPDATE 4-18-08: USCIS has clarified that petitions that were filed without requesting change of status can now be converted to change of status requests through an email to the service center. Please review the USCIS Update Allowing F-1 Students to Change Status After H-1B Filing.
MORE IMPORTANT UPDATES: 4-28-08: OPT Cap Gap Policy Guidance issued. In a 30 page policy memorandum, OPT procedures are explained in detail.
|