As many are aware, H-1B nonimmigrant visa petition for FY 2017 may be filed starting April 1, 2016. For FY 2016, USCIS received approximately 233,000 cap subject petitions during the first five business days beginning April 1, 2016. This year, it is expected that more people will apply for H-1B than the number available (annual quota of 65,000 regular cap petitions and 20,000 advanced degree cap petitions). Per current regulation, if USCIS receives a sufficient number of petitions to reach the numerical limit during the first five business days in April, USCIS will conduct a random selection “lottery” to determine the petitions that will be accepted for processing. If there is a lottery for 2017, as expected based on the last year’s number, USCIS will make an announcement. Accordingly, the H-1B cap petitions must be filed and received by USCIS by April 7, 2016 in order to get a chance to be entered into the lottery processing.
Here are the answers to two common questions on the H-1B Cap filing process we normally encounter:
Q: Will Premium Processing increase the change of making the H-1B quota?
No. Filing the H-1B cap petition with premium processing will not increase the chances being selected in the lottery. Due to the high volume of filing, USCIS usually delays the starting date of the 15-day premium processing. For FY 2016, premium processing began on April 27, 2015 even the case was filed in the first five business days. However, one benefit of premium processing filing is that the petitioner and beneficiary will get the receipt notice faster than the cases which are filed under regular processing. This information may be helpful for the beneficiaries whose OPT will expire in April as they will be able to determine their cap-gap eligibility and continued working authorization.
Q: Can F-1 student remain in the US if his or her F-1 status expires before 10/1/2016?
Under the cap-gap rule, F-1 students whose OPT was valid at the time of filing the H-1B petition, but for whom the OPT will expire before October 1, will remain in valid status and can continue to stay and work through September 30 when the petition is pending or if it is approved. However, for the students whose OPT was expired and subsequently was in a valid grace period at the time the H-1B cap petition was filed, he/she will receive an automatic extension of stay until September 30 when the petition is pending or if it is approved. However, he/she will not receive the working authorization during this period.
On August 12, 2015, the US District Court for the District of Columbia held that the 2008 STEM OPT extension rule, including the cap-gap rule was invalid, but stayed vacatur of the rule until February 12, 2016. On January 23, 2016, the District Court extended the vacatur until May 10, 2016. If a final rule is published before May 10, 2016, the cap-gap provision should remain valid without interruption.
Due to the time is critical in H-1B cap petition filing, if you have an employee who requires an H-1B petition in order to remain employed, please contact Fox Rothschild immediately to allow sufficient time to prepare the H-1B visa petition and meet the filing deadline.
If Fox Rothschild is assisting you with the filing of an H-1B petition subject to the cap, we will automatically notify you upon the filing of the petition and upon its acceptance for processing (i.e., selection in the lottery) or rejection.