FY 2017 H-1B CAP Cases Update and FAQ

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On April 7, 2016, United States Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

USCIS stated that it received about nearly 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. Compared with last year, there are about 3000 more H-1B Cap cases filed this time.

On April 9, USCIS used a computer-generated random selection process/lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

From April 11, our office started receiving e-receipt notices for H-1B quota cases filed with premium processing requests.

Based on common questions we received from our clients, here are some Q & As related to H-1B CAP filings:

Q. The beneficiary is in F-1 status now and her/his OPT and EAD will expire in May 2016. Can she/he stay and work in the United States if her/his H-1B is selected in the lottery by the USCIS?

A. Yes. This beneficiary is covered under Cap-Gap extension rule which provides automatic extension of status to eligible F-1 students to bridge the gap between the end of F-1 status and start of H-1B status. For a student with active post-completion OPT, the Cap-Gap extension for both employment and F-1 status starts on the date the student’s original OPT expires and ends September 30, 2016 unless the H-1B petition for the student is rejected, denied, or withdrawn. In those cases, the employment authorization ends and the 60 days grace period begins.

Q. Can above beneficiary stay and work in the United States beyond September 30, 2016 if the H-1B petition filed on her/his behalf has not been adjudicated by USCIS then?

A. The beneficiary can stay but cannot work in the United States after September 30, 2016. Pursuant to 8 CFR 214.2(f)(5)(vi)(A), the duration of status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) and (C), of an F-1 student who is the beneficiary of an H-1B petition and request for change of status can only be extended until October 1, 2016. If the H-1B petition is pending beyond October 1, 2016, a student can remain in the United States based on the pending change of status petition. However, the student’s work authorization will only be valid until September 30, 2016 and he or she must stop working until the H-1B petition is approved.

Q. The beneficiary is currently in L-1B status which will expire in August 2016. The L-1B employer only plans to file for her/his L-1B extension in July 2016. Will this create a problem for the pending H-1B case?

A. It depends. If the H-1B petition was filed with a request of change of status, USCIS will usually issue a Request for Evidence (RFE) requesting proof of the beneficiary’s valid status until September 30, 2016, and not adjudicate the H-1B case before the L-1B extension is approved. However, we have seen in practice that the USCIS approves the H-1B petition before the adjudication of the L-1B extension.  And then, at a later time, the L-1B extension gets adjudicated and approved by USCIS.  In such cases, according to Last Action Rule (last action from the USCIS determines the alien’s status) which USCIS follows in practice, the beneficiary would be in L-1B status and not in H-1B status. Therefore, in this situation, we strongly suggest filing the L-1B extension as soon as possible with a request for premium processing if possible.

Q. The beneficiary’s H-1B petition is not selected in the lottery, what other non-immigrant visa options does he or she have now?

A. Depending on the beneficiary’s personal situation and future plans, he or she may be eligible for F-1, L-1A, L-1B, B, E, H-1C, H-2B, H-3, J, M, TN, O, P, Q or R nonimmigrant visa. In addition, if he or she is on H-4 status, he or she may apply for H-1B spouse EAD if certain conditions are met. Please feel free to contact our office for further assistance if needed.

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