U.S. Citizenship and Immigration Services (USCIS) has completed the selection process for H-1B cap subject petitions filed for fiscal year (FY) 2020. On April 10, 2019, the agency ran computerized lotteries for both regular cap petitions and those subject to the U.S. advanced degree exemption after determining it had received a sufficient number of petitions to meet the congressionally mandated quota for each category. In all, USCIS said that it received 201,011 H-1B petitions in the five day filing period that ran from April 1 to April 5, 2019.
The announcement by USCIS confirms that H-1B cap season is in full swing. Unfortunately, meeting the quotas can sometimes feel like the fastest part of the application process for cap-subject H-1Bs. Here is a summary of what is likely to happen next along with some considerations for petitioning employers and their potential H-1B beneficiaries to keep in mind as the process continues to unfold.
Receipts
USCIS will only issue receipts for petitions that are selected in the lottery for adjudication. Because of the sheer volume of filings USCIS receives at one time, it can take weeks, and in some cases months, for USCIS to process all the petitions and to issue receipts. There is no specific time frame for the issuance of all receipts. In recent years, receipts have been mailed to employers as early as mid-April and as late as June. Once USCIS has determined which cases will be adjudicated and has issued receipts, the petitions that were not selected in the lottery will be returned in the mail with a cover letter confirming that the case was not selected.
Premium Processing
For the first time in two years, premium processing is available for FY 2020 cap-subject cases. However, it will be implemented in two phases. The first phase will begin on May 20, 2019, for H-1B cap-subject change-of-status petitions. Employers that did not opt for premium processing during the initial filing may upgrade change-of-status petitions to premium processing beginning May 20, 2019. Premium processing for all other cap-subject H-1B petitions will begin in June 2019, at the earliest.
It is important to note that premium processing cannot begin unless and until the petition has been receipted. Once the petition is receipted, USCIS has 15 calendar days to process the case. This 15-day clock will start no earlier than May 20, 2019, for change-of-status petitions that were initially filed with premium processing.
Requests for Evidence
USCIS may issue a request for evidence (RFE) at any point during the adjudication process. A RFE is generally issued if USCIS determines that the petition is missing initial evidence or if additional evidence is required to establish eligibility for the H-1B visa. If USCIS issues an RFE for a case where premium processing has been requested, the RFE stops the adjudication clock until a response is provided by the petitioning employer. A new 15-day adjudication timeline starts once USCIS receives the response.
“Cap Gap”
F-1 students who are the beneficiaries of pending or approved H-1B petitions may be eligible for an extension of their F-1 status and work authorization if their employment authorization document expires between April 1, 2019, and October 1, 2019. The extension, called “cap gap,” automatically extends the student’s optional practical training (OPT) authorization. For students whose H-1B petitions are selected for adjudication, F-1 status and work authorization are extended through September 30 of a given calendar year. If the student’s H-1B petition is not selected, work authorization ends either upon receipt of the H-1B rejection notice/return or the expiration of OPT work authorization, whichever is later. This year, USCIS began accepting H-1B petitions on April 1, 2019. Students whose OPT would otherwise expire between April 1 and October 1, 2019, could potentially utilize cap gap.
International Travel With a Pending Petition
Beneficiaries of H-1B petitions that were filed as a change of status may want to keep in mind that international travel will nullify the change-of-status request. In order to obtain H-1B status after traveling abroad, the employee will either have to leave the United States and travel to a U.S. consulate to obtain an H-1B visa or the employer will need to file a second H-1B petition with USCIS to request a change of status. (Canadian citizens are exempt from the visa requirement.) Additionally, F-1 employees who leave the United States while utilizing cap gap will void their cap gap authorization.
Ongoing Filing for H-1Bs
USCIS continues to accept H-1B petitions that are cap-exempt, including the following:
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Petitions filed for current H-1B workers who have already been counted against the cap and who retain their cap number.
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Petitions filed to extend the amount of time a current H-1B worker may remain in the United States
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Petitions filed to change the terms of employment for current H-1B workers.
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Petitions filed to allow current H-1B workers to change employers.
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Petitions filed to allow current H-1B workers to work concurrently in a second H-1B position.
Ogletree Deakins’ Immigration Practice Group will continue to monitor H-1B developments and will post updates on our immigration blog as additional information becomes available.
