17 March 2014
Category News Room
17 March 2014,

Just a reminder, we are only two weeks away from our planned filing of H-1B Cap subject case filings (Monday, March 31st).  If you have recently hired new F-1 students or located a new hire who will need H-1 sponsorship, now is the time to let us know about it so we may handle that need.

As previously confirmed, H-1B Cap subject filings will be accepted between April 1st and April 7th before collectively undergoing a lottery to determine which applications will be accepted for processing.  Since we anticipate the H-1B Cap to be reached within the first five business days of the fiscal year, those applications received on April 8th or later will not be eligible for the lottery.  In other words, if your H-1 Cap subject filing is not received three weeks from today, there is no chance of success.

We recommend that clients do a final assessment of their needs and let us know as soon as possible about any other individuals who may need an H-1B filing.

We can report that we have emailed drafts on nearly every case we were advised on prior to March 1st so long as we have had all necessary client information (those remaining cases should go out later today).  We have also filed an LCA for over 95% of case filings and expect them to be certified toward the end of this week or early next.  We have seen no issues with the Department of Labor’s (DOL) online LCA portal and we have had no major issues getting LCAs filed (unlike last year and immediately after the government shutdown in the fall where the portal crashed multiple times on a daily basis because it could not handle the high volume of internet traffic).  We expect to be ahead of schedule and ready to file the majority of our H-1B filings this week which will allow for us to take on last minute filings.  That being said, and although the LCA process seems to be working smoothly at present, we cannot guarantee that this will stay the case.  We would like to ensure we submit LCAs for all H-1B filings no later than next Tuesday (March 25th) to be safe.  This means we should be notified of any H-1B filing no later than this Friday (March 21st).

In advance of filing cases on March 31st (this is our firm target, we can still file cases up until the 5th of April), we want to remind you of a few things we learned from last year’s lottery:

1 – Premium Processing cases will be receipted and reviewed within the 15 day window that starts on April 15th (i.e. due to the lottery and organizing case filings in the USCIS mailroom, the 15 day Premium Processing clock will not start to run as of the date USCIS receives the petition as per a usual Premium Processing filing).  This means all Premium Processing cases will be processed, unless USCIS asks questions, by April 30, 2013.  Based on our experience last year we believe all Premium Processing filings will likely be receipted by the end of the day on April 11th and then processing should commence officially on April 15th.  To be clear on a point, Premium Processing is not a “premium lottery.”  Even though Premium Processing cases are receipted and processed the fastest, all Premium Processing cases take part in the same lotteries as both the Regular and/or U.S. Masters H-1B Cap cases.

2 – Regular H-1B Cap cases will not begin to be receipted until all Premium Processing cases have been receipted.  This is how things played out last year.  With limited resources, USCIS appears to prioritize the filings that it is obligated to process quicker.  However, we did start receiving regular filed case receipts by April 17th last year and a steady stream of receipts followed.  We were able to verify which cases were chosen in the lottery based on USCIS withdrawing filing fees from our account as early as April 16th for both regular and Premium Processing cases.

3 – Receipts for U.S. Master’s Cap cases are likely to come before Regular Cap case receipts.  Again, this is how things played out last year, so the order of receipt preference appears to be Premium Processing, Master’s Cap, then Regular Cap cases.  We had received all case receipts for H-1B Cap cases by early May.  We expect the process to play out similarly this year.

4 – For any case upgrade to Premium Processing, USCIS will require that a receipt first be issued.  This means that we will be unable to upgrade any cases to Premium Processing until sometime in mid-to-late April.  This was news that came out after cases were filed last year.  The usual protocol is that you may upgrade any Premium Processing eligible case without a receipt.  We suspect this was a way of reducing the burden on the USCIS mailrooms caused by any sudden demand for Premium Processing and also for ensuring the USCIS Service Centers were only entertaining Premium Processing requests if the case has been selected in the lottery.  This helps ensure USCIS is spending its limited resources attempting to upgrade only those cases eligible for an upgrade.

Although we communicated this point early in the process, it is again important to be aware of how H-1B filings affect individuals who are in F-1 status.  While there are many who have EADs from OPT that expire after October 1st, and therefore there is not an immediate issue of work authorization to contend with over the summer, many face OPT expirations in the near future.  Here is the advice we will be providing to individuals when we file those types of cases:

“We understand that your F-1 Optional Practical Training (OPT) status will likely expire before October 1, 2014.  There has been an allowance permitted by USCIS to extend your OPT “automatically” with the filing of your H-1B petition request to cover the gap between the end of OPT status and the start of H-1B status.  Your F-1 OPT status can be extended from its expiry through September 30, 2014 under a “Cap-Gap extension,” as long as an H-1B petition is filed for you prior to the expiration of the EAD.  For example, if we file an H-1B that is receipted on April 1, 2014 and your EAD expires on July 7, 2014, you are entitled to continued work authorization through September 30, 2014, on the basis of “Cap-Gap extension” of the EAD.  Please be aware of the following important clarifications while in “Cap-Gap” status:

1)      To maintain “Cap-Gap” work authorization, no travel out of the country is permitted between the filing of the H-1B and its intended start date.  This means staying in the U.S. from late March until October 1, 2014.  If you leave during a “Cap-Gap” period, you can only return and work until your EAD expires, at which point you will have no further work authorization until you leave and then reenter on your H-1B visa/approval;

2)      You must notify your school, before your EAD expires, that you plan to continue to use your EAD/OPT period.  You must show your H-1B filing receipt so the school knows you qualify for “Cap-Gap” status.  If you do not notify your school, your SEVIS record may be deactivated by the school and this may result in a “new” H-1B approval (and not a grant of a change of and extension of status, which is what is intended).  This may cause you to fall out of status and lose your work authorization.  Thus it is important to notify your school;

3)      You do not need to file anything with USCIS and no additional fee is required to take advantage of “Cap-Gap” status.

Please do not hesitate to contact our office if you have any questions about H-1 Cap Subject filings or about the status of your particular filing.

**This newsletter is provided for information purposes only, and is not intended to provide legal advice.**

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