Iowa Immigration Law Blog: H-1B Filing Date Almost Upon Us: Considerations for Employers and Employees

by Davis Brown Law Firm

With April 1 fast approaching, it is time to take a breath and make sure we have not overlooked anything in the rush to file the “cap” H-1Bs. Our office has made our list and is checking it twice – or three times (Santa has nothing on us!) If you have no idea what I’m talking about, you probably do not need to read the rest of this blog. But for those of you filing H-1B cap cases, read on.

The Filing Deadline: Cases may be accepted from April 1 (Tuesday – overnight on Monday, March 31) through April 7 (Monday – overnight on Friday or Saturday, April 4 or 5). Cases must be addressed to the right Service Center, fee paid correctly and all portions of the petition completed correctly or they will be rejected. Do not use the U.S. Postal Service to file because, sadly, they deliver to a P.O. box that is only periodically collected. If the petition is not physically collected by a Service Center employee, it is not counted as “filed” (which some found to their dismay last year).

The Lottery: USCIS will assign each case a bar code. The U.S. master’s cap of 20,000 will be drawn first. Anyone not chosen in the master’s lottery will go into the “regular” lottery. This means people with a U.S. master’s degree will have two chances at an H-1B slot. Next the regular lottery of 65,000 will be drawn, again at random.

Reports from immigration lawyers nationally point to an even higher number of applications this year than last – perhaps 200,000. Thus, filing a case does not mean you will obtain an H-1B.

Notification: You will know your case is accepted for processing (i.e., won the lottery) when you receive an receipt. Other cases will eventually be returned (along with filing fees). Last year, the lottery and receipt issuance was fairly quick, but some cases lingered for weeks. We hope that USCIS will keep us updated on its progress through the lottery so we can all track it.

“Cap Gap”: If you are in the U.S. working on OPT (“optional practice training”) that expires after April 1 and your case is filed before the OPT expires, you may continue working until you receive the results of your filing. If chosen for processing, you may continue to work until October 1. However, you should notify your foreign student advisor to update SEVIS to reflect that you are using the “cap gap” if your OPT will expire in the interim.

STEM Extensions: If you are eligible for a STEM OPT extension (you completed a qualified science, technology, engineering or math major), and your regular OPT is expiring before October 1, we highly recommend you apply for the STEM extension in any event.  

You don’t know whether your case will be accepted in the lottery, so why take the chance that it is not? Even if your case is accepted, approval is never guaranteed. USCIS has continually narrowed its interpretation of H-1B eligibility. A technical error could also occur and you could be out of work authorization until it is sorted out. STEM extensions must be filed before the regular OPT end date.

Timing of H-1B Status: If your case is chosen in the lottery, H-1B status will not commence until October 1, even if you receive an approval before that date. If you are outside the U.S., you can apply for an H-1B visa if you have your approval, but the visa should be dated no earlier than September 21 (10 days in advance of October 1). NOTE: If you plan to travel internationally after the H-1B filing is made, be sure to contact your attorney before you book tickets; travel is not always advised.

Wages, job duties and any other changes that are tied to the H-1B application (including employment tax withholding changes) would not need to start until you are in H-1B status.

Does any of this make any sense? Narrowly, yes – the rules are internally consistent and the program is being managed more logically than before. Broadly, no. No reliable data indicates that H-1B workers hurt the wages or working conditions of U.S. workers. Instead the overwhelming majority of H-1B holders fill in jobs that otherwise go wanting or go abroad.

Frustrated? Contact your Congressman.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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