The U.S. State Department has just released the April 2017 Visa Bulletin which is the seventh Visa Bulletin for the FY2017 fiscal year. The headline in the upcoming month’s Visa Bulletin is the significant forward movement in EB-3 China which continues to create a great opportunity for EB-2 to EB-3 China downgrades and I-485 filings. EB-2 and EB-3 India advance very slowly.
Very Short and Busy H-1B Cap Filing Season Expected: April 3rd to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B
As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached? So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a very busy and very short H-1B filing season. According to our sources (which include clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas. This means that there is almost a guarantee that there will be a random lottery to allocate the available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap) among all filings received in the first five business days of April. (more…)
USCIS has announced that effective April 3, 2017, they are temporarily suspending premium processing for all H-1B petitions for a period of up to six months. This surprising announcement comes in light of the anticipated heavy demand and number of H-1B “cap” filings and also to allow the government an opportunity to catch up on long-delayed H-1B processing times. (more…)
As part of a set of rule changes, collectively called “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (see our full analysis) and effective as of January 17, 2017, USCIS has made some significant and welcome changes to the way it treats work authorization document (EAD) renewals and allows for automatic work authorization based on a pending EAD renewal application in certain cases. (more…)
As part of a set of rule changes, collectively called “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (see our full analysis) and effective as of January 17, 2017, USCIS introduced a very favorable and notable change to the way H-1B (and certain other work visa holders) are treated following termination of employment: a grace period of up to 60 days. (more…)
The F-1 OPT Cap-Gap Rule: Extension of Post-Completion OPT and F-1 Status for Eligible Students Applying for H-1B Cap
Spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned. On one hand, foreign college graduates are either applying for their initial term OPT, their 24-month STEM extensions (if they qualify) or their H-1B work visas under the H-1B cap.
Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options. In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.
Background on the H-1B Cap
The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA). Upon the creation of the H-1B visa type, INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year. This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the current fiscal year starting on October 1st.
H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model. Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers. H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).
There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year. The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap; H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap. Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.
What Is “Cap-Gap”?
The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the F-1 work permit (OPT) and beginning of the H-1B status on October 1st that might otherwise occur if F-1 status was not extended for qualifying students. For example, a student whose OPT is set to expire on July 15th will have a “gap” between this date and October 1st when a new H-1B cap petition would begin (once approved).
How to Invoke the “Cap-Gap”?
Most importantly, an H-1B cap petition must be timely filed on behalf of an eligible F-1 student. This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B cap acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).
Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected under the H-1B cap lottery and approved, the student’s F-1 OPT will be considered extended and will continue through September 30th unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected under the H-1B lottery or not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.
Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.
Is Proof of Cap-Gap Status Necessary?
A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an interim cap-gap I-20 showing an extension until October 1st. Students whose approved period of OPT already extends beyond October 1st do not need an interim extension.
In some cases, a student’s SEVIS record will 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 Help Desk to have the full cap-gap extension applied to the record.
Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?
For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.
Can Students Travel While Under Cap-Gap Extension?
The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired. Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans accordingly.
The OPT cap-gap provisions for F-1 international students can be complex and may apply in different ways in different situations. Additionally, the cap-gap rule only applies if there is a timely-filed H-1B petition under the H-1B cap. While we do not yet know how quickly this year’s H-1B cap would be reached, indications of the heavy interest early this year and last year’s historical data suggest for a very short (5-day) H-1B cap filing window. In fact, we urge our clients and readers to assume that the H-1B cap season will last only five days and to aim for April 1 H-1B petition filing.
If you wish to start a new H-1B work visa petition under this year’s quota, if you have any questions or concerns about the OPT cap-gap rule or if our office can be of any help, please contact us as soon as possible. Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application, together with helping you navigate through the OPT cap-gap rules and situations.
With the approaching H-1B cap filing season, one of the most common concerns we are hearing from both prospective H-1B employers and candidates is about the H-1B cap lottery and the fact that the random lottery does not provide a great chance of an H-1B application being selected for review.
Our office has handled thousands of H-1B applications and we have seen firsthand how cruel the H-1B cap lottery can be to both employers and to workers. Unfortunately, we have seen many highly-qualified and talented workers, many of them recent graduates of top universities, see their H-1B application rejected under the lottery and then struggle to find alternatives to remain in the US.
On the other hand, there are certain things that can be done to increase the chance that an H-1B candidate will see their application selected under the H-1B lottery and ultimately approved. We would like to share some of our experiences.
Background of the H-1B Cap Lottery
The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA). Upon the creation of the H-1B visa type, INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year. This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2018 (fiscal year) starting on October 1, 2017. As a result, each year, by law, USCIS can approve up to new 65,000 H-1Bs.
There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year. The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree or higher from a U.S. university are exempt from the 65,000 cap; H-1B visas issued to such U.S. master degree or higher holders subsequent to the first 20,000 are then counted against the overall 65,000 cap. Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.
Historical Chances of Selection by the H-1B Cap Lottery
Over the last several years, the chances of selection of a new cap H-1B application under the H-1B cap have been decreasing.
Last year (FY2017) there were 236,000 applications and the cap was reached over the first five days. This means that there was approximately 27% percent chance that an H-1B cap filing will be selected under the H-1B lottery. The chance for U.S. master’s degree or higher holders was slightly higher. Previously, in FY2016, there were 233,000 applications and the cap was also reached over the first five days of the filing season, for a lottery selection success rate of 27%.
This trend of increasing of H-1B cap filings, together with the improving economy in the United States, suggests that this year’s H-1B cap will also be oversubscribed even after only five filing days and will be subject to a random computer-generated lottery.
Ways to Increase the H-1B Cap Lottery Chances of Success
- Use US Master’s Degree or Higher
One of the most obvious ways is to try to take advantage of the 20,000 U.S. master’s degree or higher cap exemption. Doing so can boost the chance of selection by at least several percentage points, based on last year’s filings.
However, private for-profit universities’ degrees are not accepted and if the candidate has not officially graduated yet, all of the degree requirements (including thesis, if required) must be completed by the time the H-1B petition is filed on April 1. Also, the offered position must be one which is related to the master’s degree field of study.
- File Multiple Years
Mathematically speaking, filing for an H-1B cap in multiple years increases the overall chance of success under the H-1B cap lottery. We recommend that employers and candidates do not miss an opportunity to pursue an H-1B cap petition as early as possible – assuming the employer is willing to sponsor and assuming the candidate meets the eligibility requirements. We have seen (unfortunately, not just a few) cases where a H-1B cap case was not pursued early because “there would be more opportunities to do so in subsequent years” only to find out that such subsequent years’ H-1B petitions were not successful under the H-1B cap lottery.
For example, many F-1 OPT holders (and especially STEM graduates) often have multiple opportunities to file under the H-1B cap due to the fact that their OPT may be valid for 1 year which may cover two H-1B cap seasons (STEM graduates may get a chance to participate in at least one, and likely two more, H-1B cap seasons). This is also true for H-1B candidates who are still in school – there are other ways to build H-1B cap eligibility in order to file an H-1B petition early and to be able to have multiple years’ H-1B filings as backup options.
- Establish H-1B Cap Eligibility in Alternative and Creative Ways (In Order to be Able to Make Early and Multiple H-1B Filings)
Related to the suggestion to consider early H-1B cap filings, even when doing so may not be so obvious, there are ways to make H-1B cap eligibility cases when the candidate is still in school.
For example, many U.S. master’s degree students who may not have completed their master’s degree requirements may still be eligible for an H-1B cap filing based on their prior bachelor’s degree. The H-1B minimum requirements are that the position requires, at a minimum, a bachelor’s degree (or higher) and that the candidate has such degree. Many master’s degree students already have a degree which may make them eligible for an H-1B even before the master’s degree is completed.
Similarly, an H-1B cap case may be build based on incomplete degree plus years of work experience. The H-1B regulations permit an incomplete degree to be used – each missing year of education (from a four-year bachelor’s degree) can be substituted by three years of related work experience. As a result, many candidates who have work experience may be eligible for an H-1B cap case even if their bachelor’s degree is still incomplete. Please see our article on filing H-1B cap before graduation for additional details.
- Job Offers with Multiple Employers
USCIS specifically prohibits multiple H-1B cap filings by the same employer on behalf of the same worker. But a qualified H-1B candidate can have bona fide job offers by more than one employer and can have multiple (different) employers seek to obtain cap H-1B approval on their behalf. Having a bona fide sponsorship by more than one employer also increases the chances of success under the H-1B cap lottery.
- File a Perfect Application
Last but not least, and stating the obvious, is making sure to file a perfect H-1B cap application. The H-1B filing is generally a fairly technical set of documents and using a qualified and attentive attorney is strongly recommended. Yes, we are biased, but we have seen applicants hurt by poorly-prepared or late H-1B cap applications. USCIS will reject any H-1B petitions filed at the incorrect service center, requesting incorrect H-1B employment dates, with missing pages or signatures or filed too early or too late. Needless to say, this is a one-time opportunity without a chance to correct a mistake or redo an application, so the margin of error is extremely small to none.
While we do not yet know for sure how many H-1B cap applications will be filed over the first five days of April this year, based on what we see in our office, the demand is higher than last year. We urge our clients and readers to assume that the H-1B cap season will last only five days, that there will be a lottery and to aim for April 1, 2017 H-1B petition filing.
If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible. Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.
As the H-1B cap filing season is well underway and as the filing day of April 1st is approaching fast, a common question by H-1B employers or H-1B candidates is whether an H-1B cap petition can (or should) be filed when the foreign national employee is still completing their degree program and when the degree will not be completed by April 1st. The short answer is that while the H-1B regulations require a degree be completed in order to be used for H-1B filing, there are ways to use previous or partially-completed degree to qualify for the H-1B cap. This option becomes increasingly important as we are facing a situation where, due to high demand, many H-1B candidates will not be selected under the H-1B cap lottery and being able to file a few times, over two or three H-1B cap seasons, becomes a critical advantage.
Background: Supporting H-1B Employee’s Degree Must be Completed by April 1st
The general rule with respect to using educational degrees for H-1B cap filings is that a degree must be completed before April 1st in order for this degree to be usable to qualify its holder for H-1B work visa filing under the H-1B cap. USCIS has clarified that they would accept degrees as completed when all of the courses and degree requirements have been completed by April 1st and that the only outstanding item remaining is the actual graduation ceremony (which is usually later in the spring, most often in May).
While it is possible that some degree requirements can be completed by April 1st (in which case the degree can be used to qualify for the H-1B cap), most often a degree is not completed by April 1st. In this kind of situations, the foreign national (and their employer) does not normally consider the possibility of an H-1B cap filing. However, there are ways in which this can be done, thereby increasing the attempts an H-1B cap petition can be filed, selected under the cap and ultimately approved.
Why Should I Try to File H-1B Cap Before Graduation?
The simple answer is: to increase the chance of getting an H-1B cap petition filing accepted for processing under the random H-1B cap lottery (and ultimately, approved). Those candidates lucky enough to have an employer willing to sponsor their H-1B even before graduation should consider the possibility of making a case for H-1B cap petition filing even before graduation. Even if the case is not successful under the H-1B cap lottery, they will likely have at least one (and perhaps more if using F-1 OPT) extra opportunity to do so again in next year’s H-1B cap.
H-1B Cap Filing Based on Prior or Partially-Completed Education
Even when the degree is not completed by April 1st, all is not lost. An H-1B petition normally requires that the position require a bachelor’s degree or higher and that the foreign worker have such a degree. So, if a master’s degree student is working on completing their master’s degree but the degree requirements are not completed by April 1st, and assuming the undergraduate degree is related to the offered position, the H-1B employer can still file a cap H-1B petition on behalf of the foreign national. Yes, the H-1B cap will have to be under the general (65,000 visas) cap as opposed to the master’s (additional 20,000 visas) cap; but it still allows a filing and an extra shot at the cap lottery.
Additionally, USCIS accepts work experience in lieu of missing education. Three years of relevant experience can be used to supplement each missing year of education. So if an foreign worker has three years of completed education but at least three years of related work experience, it may be possible to make an equivalency argument for a bachelor’s degree. This may even allow a foreign student who is pursuing their bachelor’s degree in the U.S. and who has at least three years of relevant experience to make a case for H-1B cap filing on April 1st.
With the high anticipated demand during the H-1B cap season and the anticipated lottery, it becomes increasingly important for H-1B employers and their H-1B visa candidates to take advantage of any available opportunity to increase their chances to ultimately get selected under the H-1B cap. Being able to file under more than once, in two or three, H-1B cap lottery iterations becomes one of the key (and sometimes overlooked) ways to boost one’s chances.
We are hopeful that this article would allow at least some H-1B employers and workers to evaluate the opportunity of filing for H-1B under this year’s cap even if the degree is still in progress and will not be completed by April 1st. Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way. Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
The U.S. State Department has just released the March 2017 Visa Bulletin which is the sixth Visa Bulletin for the FY2017 fiscal year. The headline in the upcoming month’s Visa Bulletin is the significant (six months) forward movement in EB-3 China which continues to create a significant opportunity for EB-2 to EB-3 China downgrades and I-485 filings. EB-2 India advances slightly as well.
There has been a tremendous amount of discussion and comment on President Trump’s executive order banning certain travelers from the seven countries; however, one provision of the executive order which has a significant impact on many visa holders from all countries is the suspension of the interview waiver program (commonly called “dropbox”) which allows visa stamp renewals to be processed as U.S. consulates abroad without having to appear for a personal interview. However, based on the exceptions in the executive order and in the Immigration and Nationality Act, at this time, a notable number of visa stamp applications are still eligible for interview waiver.
What is the Visa Interview Waiver Program (or “Dropbox”)
The Visa Interview Waiver program allows stamp applicants seeking a U.S. visa stamp in their passports (and who are deemed to meet certain criteria) to submit a visa stamp application without having to appear for a personal interview with a U.S. consular officer. The program is commonly called “dropbox” and has allowed U.S. consulates to prioritize and process certain visa stamp applications much faster which has resulted in much more efficient visa stamp processing across many other visa categories.
It should be noted that the Visa Interview Waiver program is different than the Visa Waiver program. The Visa Waiver program allows nationals of certain countries to travel to the U.S. without having to obtain a visa stamp in their passport. The Visa Interview Waiver program allows applicants who need a visa to obtain one without having to attend the interview with a consular officer.
President Trump’s Executive Order Suspends the Interview Visa Interview Waiver Program
Section 8 of the executive order (Protecting the Nation from Foreign Terrorist Entry into the United States) reads in relevant part that,
(a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
The same section also calls for the increase of personnel who would be available to process visa applications (and interviews) in order to avoid increase in the visa interview wait times.
A Substantial Portion of Visa Stamp Applications Are Still Eligible for Visa Interview Waiver (or “Dropbox”)
Despite the broad call for immediate suspension of the Visa Interview Waiver program, the executive order allows for exceptions to this suspension, when permitted by law. We have been monitoring closely the actual implementation of this provision across U.S. consulates around the world and our experience – based on reports from clients and based on our contacts with the government – has been that notable portions of the Visa Interview Waiver program are still operational.
First, it is important to note that the executive order specifically states that there are specific statutory exceptions. On February 1, 2017, the Department of State’s Visa Office confirmed that the majority of Visa Interview Waiver program cases are still eligible to process under the program without an interview. Specifically, cases covered by Immigration and Nationality Act (INA) section 222(h)(1)(A) and 222(h)(1)(B) are still eligible.
222(h)(1)(A): Includes foreign nationals who are: “(i) within that class of nonimmigrants enumerated in subparagraph (A) or (G) of section 101(a)(15) [diplomatic visas]; (ii) within the NATO visa category; (iii) within that class of nonimmigrants enumerated in section 101(a)(15)(C)(iii) (referred to as the `C-3 visa’ category) [transit visas]; or (iv) granted a diplomatic or official visa on a diplomatic or official passport or on the equivalent thereof.”
222(h)(1)(B): Includes foreign nationals who are applying for a visa: “(i) not more than 12 months after the date on which such alien’s prior visa expired; (ii) for the visa classification for which such prior visa was issued; (iii) from the consular post located in the country of such alien’s usual residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national; and (iv) the consular officer has no indication that such alien has not complied with the immigration laws and regulations of the United States.”
What this means that, in addition to the enumerated visa categories in section 222(h)(1)(A) (mostly diplomatic-type visas), the “dropbox” Visa Interview Waiver program continues to apply and be in force and effect for visa renewals where the existing visa has expired within the last 12 months or less and where the applicant is applying in their country of usual residence.
Our office has been in contact with various agencies and applicants over the past several days and our experience confirms that as of the date of this article, the Visa Interview Waiver program is still operations and available to many applicants, especially those renewing their visa stamps. However, we caution anyone who is planning to travel abroad and appear for a visa stamp at a U.S. Consulate to carefully consider the most recent reports from the specific consulate and be prepared for sudden changes to the process.
Visa Stamp Processing Times Likely to Increase
We expect that as a result of the suspension of the Visa Interview Waiver program, at least as it pertains to some candidates, the wait times for an interview and for visa stamp processing will increase. The executive order calls for hiring additional staff in order to handle such increase in volume in interviews; however, we urge visa stamp applicants, even those who are still eligible for the Visa Interview Waiver program, to plan carefully ahead of time and be prepared for longer processing visa stamp times.
There has been a substantial amount of confusion over the last few days over all of the provisions of the executive order. The situation remains fluid and we caution our clients and readers to carefully consider and possible risks of traveling abroad and/or going for stamping. However, our recent reports and intelligence suggests that as of the date of this article, at least major portions of the Visa Interview Waiver program remain valid and in effect.
Our office will continue to monitor developments related to immigration executive orders or congressional legislation efforts and we will be providing updates as soon as they are available. Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.