U.S. Citizenship and Immigration Services (USCIS) announced that the fiscal year (FY) 2015 H-1B cap was reached as of April 7, 2014. USCIS will now reject and return non-duplicate cap-subject petitions that were not selected (with filing fees). USCIS received about 172,500 H-1B petitions during the filing period that began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced-degree exemption. The agency conducted the selection process first for the advanced-degree exemption. All advanced-degree petitions not selected then became part of the random selection process for the 65,000 limit.
What does this mean for F-1 students whose H-1Bs are accepted for processing under the quota and whose OPT will expire before October 1, 2014?
An F-1 student whose H-1B case has been selected for processing under the quota and whose F-1 Optional Practical Training (“OPT”) will expire prior to October 1 may, if certain conditions are met, continue to work during the gap period.
The cap-gap occurs because an employer may not file an H-1B petition more than six months in advance of the beginning of the new fiscal year (October 1st) once quota numbers for the previous fiscal year have been exhausted. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the beneficiary may work pursuant to the approved H-1B petition is October 1.
However, current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status and continue working during the cap-gap period if their employer filed the H-1B petition with a change of status request. This is referred to as filling the "cap-gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.
What does the H-1B Cap Being Reached Mean for Others with expiring work authorization and Whose H-1B Petitions are not Accepted for Processing under the 2015 H-1B visa cap?
- Upon conclusion of their current F-1 status/OPT, students will need to leave the U.S. within the 30 day grace period.
- For J-1 visa holders who are unable to extend their current J-1, they will need to leave the U.S. within the 60 day grace period.
- For individuals outside the U.S., they should review if any other options are available to them based on nationality (e.g. TN, E-3, H-1B1), their individual skills/abilities (O) or to transfer to the U.S. after working for a company’s related entity abroad (L-1).
There are many options that can be reviewed, and we recommend you contact the attorney you work with at Maggio + Kattar to determine which of these may apply to you.