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Fiscal Year H-1B

Fiscal Year H-1B

These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.


GENERAL QUESTIONS

What is a Fiscal Year H-1B? 

The USCIS fiscal year runs from October 1 through September 30.  When employers sponsor an employee or future employee for H-1B employment, and this employee has not previously held H-1B status either with the current employer or a past employer, the employee requires a fiscal year H-1B approval. 


How many Fiscal Year H-1Bs are available? 

Under current laws, the USCIS may approve up to 65,000 new H-1Bs each fiscal year, plus an additional 20,000 for U.S. Master’s or higher degree graduates.  These limits are known as the “H-1B Cap.”


Are there any exemptions to the Fiscal Year Cap? 

Yes, employers who are nonprofit research organizations, governmental research organizations, institutions of higher learning or affiliated organizations may sponsor H-1B employees, and these H-1Bs are not subject to the Cap. 

In addition, as a result of the United States’ Free Trade Agreements with Chile and Singapore, several H-1B visas are allocated each fiscal year for citizens of Chile and Singapore.  These 6,800 visas are exempt from the Cap.


When may an employer file the petition for a Fiscal Year H-1B visa? 

The USCIS accepts H-1B petitions no more than 6 months in advance of the fiscal year, which means April 1.  By regulation, the USCIS must accept properly prepared Fiscal Year H-1B requests during the first 5 business days of April, after which a random computer-generated lottery is held if the number of requests exceeds the allotment of H-1B visas. 

First, the lottery is held for the 20,000 U.S. Master’s or higher degree beneficiaries.  Anyone not selected in that lottery will be eligible for the lottery for the remaining 65,000 H-1Bs.  


How will the employer be notified if they “win” or “lose” the lottery? 

The USCIS will hold all H-1B petitions during the first 5 days of April.  After the random lotteries are completed, the USCIS will issue receipt notices to those selected in the lottery and will cash the filing fee checks.  The USCIS will return to the employer all H-1B petitions not selected in the lottery.


How long will it take for a receipt notice to arrive?

In recent years, WSM has received the vast majority of receipt notices by U.S. mail within 6 to 8 weeks for standard cases.   Please note that premium processing is also available for an additional government filing fee of $1,225 as well as applicable legal fees.  WSM traditionally has received email notification for cases filed via premium processing within 2 to 6 weeks.


What are the chances of being selected for a Fiscal Year H-1B visa in the lottery? 

The chance of being selected in the lottery depends on the overall number of petitions received in the first 5 business days of April.  In 2016, the USCIS reported that it received 236,000 H-1B petitions, including petitions filed for the 20,000 cap for U.S. Master’s or higher degree beneficiaries.  The odds were more favorable for the 20,000 U.S. Master’s or higher degree holders. 


If the employer receives a receipt notice, does that mean for sure that it will receive approval of the H-1B petition? 

No, the USCIS must still evaluate the H-1B petition for approvability based on laws and eligibility requirements.  For example, the USCIS will evaluate whether the job being offered is in a “specialty occupation” which requires a minimum of a Bachelor’s degree in a specialized field of study, or perhaps whether the Bachelor’s degree held by the candidate is related to the offered job.

If the USCIS has any questions, they will issue a Request for Evidence (“RFE”) and provide the employer with a deadline by which to answer the questions and/or provide more information. 


How long will it take for the USCIS to approve the H-1B petition if an RFE is not issued or if an RFE is issued? 

In recent years, WSM received approval notices filed under normal processing on average within 4 months.  However, if an RFE is issued, that typically will delay overall case processing by about 2 to 3 months depending upon how quickly the response can be prepared and submitted.


Does it help if the employer files under premium processing?  What is premium processing?

Premium processing provides expedited government processing.  For a filing fee of $1,225 (paid in addition to the regular USCIS filing fee for H-1Bs and additional legal fees), the USCIS will process the petition at a faster pace.  WSM traditionally has received email notification for cases filed via premium processing within 2 to 6 weeks. In general, the employer will receive an approval, denial, or RFE within 15 days of receipt acknowledgement or the government will issue a refund of the premium processing fee. 

Filing under premium processing does not mean the H-1B can be approved with an effective date prior to October 1.  All Fiscal Year H-1Bs can be approved with an effective date no earlier than October 1.

The primary advantage to premium processing is to receive a decision earlier.  In some cases, this may be desirous so that contingency plans may be made.

There is no indication that premium processing cases receive more favorable results than cases filed under regular processing, whether in terms of the lottery or ultimate H-1B approval. 


May the employee pay for premium processing? 

Yes, employees may pay the $1,225 USCIS filing fee and associated legal fees for premium processing.  The employees may not pay the regular USCIS filing fees, however.  


EMPLOYEE QUESTIONS

Do I have work authorization while the Fiscal Year H-1B petition is pending at the government? 

For those holding F-1 Optional Practical Training (OPT) status expiring before April 1, and where OPT status cannot be extended to April 1 or beyond, a timely filed H-1B petition will not extend OPT work authorization.  If all eligible OPT has been exhausted prior to April 1, the employer still may file the H-1B petition, but the employee most likely will need to depart the U.S. when the authorized OPT period expires to wait for the USCIS to approve the Out of Country H-1B and then return to the U.S. just prior to October 1. 

If OPT status expires after April 1 but before October 1, the employee is eligible for Cap Gap protection. 


What is Cap Gap protection? 

For those employees with F-1 OPT status expiring April 1 or later but before October 1, the USCIS allows continued work authorization until October 1 so long as an H-1B petition has been timely filed on the employee’s behalf.  This is known as “Cap Gap” protection.  If for some reason the H-1B petition is denied, the individual no longer has Cap Gap protection and should cease working once the OPT expires to avoid periods of unauthorized employment.   Likewise, if an H-1B is not selected in the lottery (“rejected”) the employee will only hold work authorization through the duration of his/her F-1 OPT.

If an individual’s OPT expires after October 1, s/he has continued work authorization regardless of the Cap Gap provisions. 


Is there a Cap Gap for individuals who are not in F-1 status? 

No.  Cap Gap protection is available only to those holding F-1 OPT that expires April 1 or later and before October 1.  For example, someone holding J-1 status valid through June 1 would not be eligible for employment after June 1 even if the H-1B were timely filed.  That J-1 holder would be required to cease work on the date of J-1 expiration, depart the U.S. after the expiration of any grace period, and assuming the H-1B were selected in the lottery and approved, return to the U.S. in H-1B status after obtaining an H-1B visa stamp at a U.S. Consulate abroad.


What must I do to take advantage of the Cap Gap? 

The individual should contact her/his Designated School Official (“DSO”) with evidence of the H-1B change of status request (typically, a receipt notice, Fed Ex receipt or approval notice) to obtain an endorsed Form I-20 indicating preliminary Cap Gap eligibility through June 1.  Once the H-1B petition has been selected in the lottery, the individual must return to the DSO with a copy of the Form I-797 receipt notice issued by the USCIS.  The DSO will issue a new Form I-20 endorsed to reflect the continued OPT. 


Can I travel outside the U.S. once the Fiscal Year H-1B petition has been sent to the USCIS?

Always speak with your employer and attorney before making international travel plans.  As a general rule, traveling internationally after April 1 (once the petition has been filed) and before October 1 carries risk for all employees. 

Eligibility for international travel will depend on several factors, including: (1) case filing posture, whether “Out of Country” or “Change of Status”; (2) the timing of travel; (3) visa stamp validity; (4) whether cap gap protection applies; and other issues. 

SCENARIO  No. 1 — Employee Benefitting from Cap Gap Protection:

An F-1 student who has an approved H-1B petition and whose OPT work authorization expires on April 1 or later but before October 1 can benefit from Cap Gap. During the Cap Gap period, an F-1 student can travel and re-enter the United States prior to October 1 only if:

 

  1. The H-1B change of status petition filed on behalf of the student has been APPROVED before the student travels;
  2. The student has a valid F-1 visa stamp at the time of reentry;
  3. The student has a Form I-20 that reflects the cap gap benefit and that has been properly endorsed for reentry with the DSO’s travel signature within the last six months; AND
  4. The student is otherwise admissible.

Important  Notes:

  • Travel is NOT allowed while the H-1B change of status petition is pending.  Under longstanding INS/DHS policy, an applicant who departs the United States while a change of status application is pending is deemed to have abandoned the change of status application; in such a case, the student’s cap gap benefit would also end.
  • As with any other instance in which an individual seeks admission to the United States, admissibility is determined at the time the individual applies for admission at a port of entry and the student still runs a remote risk of not being admitted by the port of entry officer. 

SCENARIO  No. 2 — Employee with F-1 OPT Status and Visa Stamp Valid Beyond October 1: If your OPT work authorization document and visa stamp are valid beyond October 1, you may be eligible to travel internationally after April 1 and before October 1.  WSM likely would file the case as an Out of Country petition, which means that in addition to the contemplated summer travel, you would need to depart the U.S., obtain an H-1B visa stamp, and re-enter the U.S. in order to eventually effectuate H-1B status.  Please note that even in this circumstance, there is a remote chance that a port of entry officer at the airport could refuse entry after international travel once the H-1B has been filed.  Please consult with WSM regarding summer travel if you meet all requirements noted above. 

SCENARIO  No. 3 — Employee with F-1 OPT Status Beyond October 1 Without Valid Visa Stamp: If your OPT work authorization document is valid beyond October 1 but your visa stamp will expire before the date of your planned re-entry to the U.S. after summer travel, WSM advises against international travel after April 1.  You would be required to apply for a new F-1 visa stamp at the Consulate abroad before re-entering.  Once the H-1B has been filed, the U.S. Consulate could refuse to entertain the visa stamp application.  If the employer and employee want to assume this risk, WSM recommends filing the H-1B petition as an Out of Country case.  


What is an Out of Country H-1B petition versus a Change of Status H-1B petition? 

Depending on your travel needs and/or when your current work authorization expires, your employer may choose to file an Out of Country H-1B petition.  This means that once approved, you will need to apply for an H-1B visa stamp (unless you are Canadian) at a U.S. Consulate or Embassy abroad before you return to the U.S. to begin H-1B employment. 

If your employer files a Change of Status H-1B petition, this means that as long as your current work authorization continues through October 1, you will not need to depart the U.S. to apply for an H-1B visa stamp before beginning H-1B employment.


If I need to apply for an H-1B visa stamp, when is the earliest I can do this

Most U.S. Consulates and Embassies will allow you to apply for an H-1B visa stamp as early as 30 days in advance of the start date indicated on the Form I-797 approval notice. You are permitted to enter the U.S. up to 10 days prior to your H-1B employment.  You may not begin working until the start date indicated on the approval notice. 

 

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