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H-1B Cap Reached Within Days, Highlighting America’s Need for Foreign Professionals to Fill Critical Workforce Gaps

USCIS announced that it had once again received more than enough H‑1B petitions within the first five business days of the FY2020 filing period to reach the annual cap of 85,000 new H‑1B visas. The agency received 201,011 petitions, an increase from last year’s total of 190,098.

USCIS to Resume Premium Processing for FY2019 H-1B Cap Petitions on Monday

USCIS announced that it will resume premium processing on Monday, January 28, 2019, for all FY2019 H‑1B cap petitions, including those eligible for the advanced degree exemption (the “master’s cap”). The previously announced temporary suspension of premium processing remains in effect for all other categories of H‑1B petitions to which it applied.

USCIS Reminder: F-1 “Cap-Gap” Status and Work Authorization Extension Only Valid Through September 30

USCIS issued a reminder that F-1 students who have an H-1B petition that remains pending on October 1, 2018, risk accruing unlawful presence if they continue to work on or after October 1, 2018, unless otherwise authorized to continue employment, as their “cap-gap” work authorization is only valid through September 30, 2018. See AILA’s practice pointer on this topic for more information.

H-1B’s to open up in April

You should start thinking about preparing and getting ready the H-1B you might qualify for in order to try to be in this years allotment of H-1B’s.

H-1B Cap-Gap Is a lifesaver for Many

Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Specialty Occupation Worker Petition Cap-Gap Regulations

Q: Just what is without a doubt the Specialty Worker Petition cap?

A: The cap is without a doubt the congressionally-mandated limit about the amount associated with folks that may be granted initial Specialty Occupation Worker status or visas during each fiscal year. For FY 2011, the cap is without a doubt 65,000.

Not all H-1B Visa Petition beneficiaries are subject to the cap. Congress has provided in which the to start with 20,000 H-1B Specialty Occupation Worker Petition petitions filed about behalf associated with aliens who may have earned a U.S. master’s degree as well as higher tend to be exempt from the fiscal year cap. H-1B Specialty Petition applications filed on behalf associated with beneficiaries who could work at institutions of higher education or simply related or perhaps affiliated nonprofit entities, as well as at nonprofit research organizations or simply governmental research organizations are usually exempt from the fiscal year cap. Also, applications filed upon behalf associated with beneficiaries who may be performing work as well as services solely in Guam and/or the Commonwealth of the Northern Marianas Islands (CNMI) tend to be exempt via the cap until Dec. 31, 2014. Generally, H-1B Specialty Occupation Worker Petition beneficiaries seeking in order to extend status and/or add employers are generally not subject in order to the cap.

Q: Exactly what do Current F-1/H-1B Extension Regulations Allow?

A: Current regulations allow certain students with pending or even approved H-1B Specialty Petition applications to stay on in F-1 status during the period associated with time once an F-1 student’s status and work authorization would certainly otherwise expire, and up to be able to the start associated with their approved Specialty Worker Petition job period. This is referred to be able to as filling the “cap-gap,” meaning the regulations provide a way regarding filling the “gap” between F-1 and Specialty Occupation Worker status in which might otherwise occur if F-1 status was not extended for qualifying students.

Q: How does “Cap-Gap” Occur?

A: An employer may well not file and USCIS might not accept, an H-1B Visa Petition petition submitted earlier than six months in advance regarding the date regarding actual need to the beneficiary’s services or training. Being a result, the earliest date that an employer may file an H-1B Visa Petition petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the Specialty Occupation Worker petition plus the accompanying change regarding status request, the primary date which persons studying may start the approved H-1B Visa Petition employment is Oct. 1. Consequently, F-1 students who really do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, tend to be required to leave the usa, apply for an Specialty Occupation Worker visa on a consular post abroad, and and then seek readmission to be able to usa in Specialty Worker Petition status, in the dates reflected upon the approved Specialty Occupation Worker petition.

Q: That petitions and beneficiaries qualify for a cap-gap extension?

A: Specialty Occupation Worker applications need to be timely filed on behalf of an eligible F-1 student. Timely filed means of which the Specialty Worker Petition petition (indicating change of status as an alternative to consular processing) was filed during the Specialty Occupation Worker acceptance period, as the student’s authorized duration regarding status (D/S) admission was nevertheless in effect (including any period of time during the academic course associated with study, any authorized periods regarding post-completion OPT, along with the 60-day departure preparation period, commonly named the “grace period”).

Once a timely filing is actually made, the automatic cap-gap extension could begin and might continue until the Specialty Worker Petition petition adjudication procedure appears to have been completed. Should the student’s Specialty Worker Petition petition is going to be selected and approved the student’s extension will probably continue by means of September 30th unless the petition is going to be denied, withdrawn, or perhaps revoked. When the student’s H-1B Specialty Occupation Worker Petition petition is not selected and approved, students will contain the standard 60-day grace period coming from the date associated with the rejection notice or their program and also OPT end date, whichever is going to be later, to be able to get ready for and depart the united states.

Students are usually strongly encouraged to live in close communication with their petitioning employer during the cap-gap extension period for status updates upon the H-1B Visa Petition petition processing.

Q: Precisely how does a student covered under the cap-gap extension obtain proof regarding continuing status?

A: A student may need to be able to acquire an updated Form I-20 via his or perhaps her designated school official (DSO). The Form I-20 is actually the simply document a student will probably have to show proof regarding continuing status and OPT, if applicable. The student will need to go to be able to their DSO with evidence regarding a timely filed H-1B Specialty Petition petition (indicating a request for change regarding status instead of for consular processing), just like a copy associated with the petition and a FedEx, UPS, or even USPS Express/certified mail receipt. The student’s DSO might issue an interim cap-gap I-20 showing an extension until June 1st. Students whose approved period regarding OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record could not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Assist Desk to have the full cap-gap extension applied in order to the record. For additional details upon the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

Q: If a student was not in an authorized period associated with OPT upon the eligibility date for the cap-gap extension; could persons studying work during the cap-gap extension?

A: No. For a student in order to have employment authorization during the cap-gap extension, he or maybe she need to possibly be in an approved period associated with post-completion OPT on the eligibility date.

Q: If, right after being granted the automatic cap-gap extension, a student’s H-1B Specialty Petition petition is going to be subsequently rejected, denied, or maybe revoked is actually the student allowed the 60-day grace period?

A: Yes. A student could use the standard 60-day grace period before he or maybe she is going to be required to departtheUnitedStates. Students and Work Specialty Worker Petition Fiscal Year (FY) 2011 Cap Season Extending Period associated with Optional Practical Training by 17 Months for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All Students F-1 Students with Pending H-1B Specialty Occupation Worker Petition Petitions.

Q: May students travel outside usa during a cap-gap extension period and return in F-1 status?

A: No. The regulations at 8 CFR 214.2(f)(13) state that will a student who has an unexpired Work Authorization Document (EAD) issued for post-completion OPT and who is going to be otherwise admissible may return to the u . s to be able to resume job right after a temporary absence. However, by definition, the EAD associated with an F-1 student covered under a cap-gap extension is necessarily expired. Consequently, if a student granted a cap-gap extension elects to be able to travel outside the u . s during the cap-gap extension period, he or she could not be able to be able to return in F-1 status. The student will probably need to be able to make an application for an H-1B Specialty Occupation Worker Petition visa at a consular post abroad prior in order to returning. As the Specialty Worker Petition petition is actually presumably for an October 1 or simply later start date, a student really should possibly be prepared to adjust his or even her travel plans, accordingly.

Q: Do the limits on unemployment time apply to students who happen to be granted an automatic cap-gap extension for F-1 status and post-completion OPT?

A: Yes. The 90-day limitation upon unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q: In case the student is actually granted the automatic cap-gap extension associated with F-1 status and post-completion OPT, and his or her Specialty Occupation Worker petition is denied or even withdrawn, may persons studying apply for a STEM OPT extension?

A: Yes. However, such an application must possibly be made within 10 days regarding the denial and also withdrawal.

Q: For Fiscal Year 2010, due to the availability regarding H-1Bs, not all employers requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B job might not begin until a later date. Just what should really students do in order to correct this?

A. A student ought to contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk. A student may continue to be able to work past October 1st upon their OPT (their EAD card could nonetheless show the original end date) if your request in order to change the end date back is actually pending with the SEVIS Desk.

Q. An F-1 student whose period regarding post-completion OPT could extend beyond the effective date of his or her change regarding status to H-1B Specialty Occupation Worker Petition will not need the automatic cap-gap extension associated with his or even her period of F-1 status and OPT. When the H-1B employer regarding such a student withdraws the H-1B Specialty Petition petition ahead of the change associated with status to be able to H-1B Specialty Petition becomes effective, could a student continue in order to use any staying period associated with post-completion OPT?

A. Yes, though merely if USCIS will get the withdrawal request coming from the Specialty Worker Petition petitioner ahead of the change associated with status to H-1B Specialty Petition becomes effective. Once the petition is actually withdrawn, a student ought to provide his or even her DSO with a copy regarding the USCIS acknowledgement of withdrawal (as well as notice of revocation). The DSO may then make a request in order to the SEVIS Assist Desk for a data fix to be able to the student’s record in SEVIS. Such students may continue to work pursuant to their unused period of OPT as the data fix remains pending because students might still be in good F-1 status.

If, however, USCIS does not receive the withdrawal request ahead of the change associated with status to be able to H-1B Specialty Occupation Worker Petition becomes effective, a student have to file a Form I-539 to request reinstatement and might not exactly work or attend classes until the reinstatement is approved.

Q. Are students considered to be able to possibly be in valid F-1 status right after revocation regarding the H1B petition has occurred, yet in terms of request to change the OPT end date remains pending? A. Possibly. If the H-1B Visa Petition employer revokes the H-1B Specialty Petition petition prior to October 1 and the student’s original OPT end date extends beyond the date of revocation, persons studying remains in legitimate F-1 status and may continue to work pursuant to be able to the EAD received for OPT.

Should the student’s original OPT end date expires before revocation associated with the Specialty Occupation Worker petition has occurred, the student retains work authorization to get a 10-day period following the date of revocation and enters the 60-day grace period upon the date of revocation.

Persons studying who benefit from the auto cap-gap provision in which isn’t going to include an extension of OPT remains in logical F-1 status and enters into the 60-day grace period about the date regarding revocation.

Each associated with the scenarios above are generally based upon the assumption that will students has maintained F-1 status up until the date associated with revocation.

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