Clarity and Strength in Immigration Law

End of the Road for H-1B Cap Receipt Notices? And What’s Next?

Employers and would-be H-1B employees alike are understandably anxious to know where things stand with the H-1B cap receipt notices.  Here’s what’s happening:

USCIS announced in early May that they had finished “entering data” in connection with the H-1B receipt notices. Therefore it’s likely that we have either already received all the H-1B cap receipt notices we will receive this year, or that only a handful are left, and should be in the mail now. Our office has not received additional H-1B cap receipt notices since early May.

We have not started receiving rejected petitions yet, but we will notify employers as soon as we have more information on specific cases.

Some frequently asked questions (and answers!) are below:

Q: When will I know for sure if my case was selected in the H-1B cap lottery?

 A: The only way we will know for sure is when we receive a receipt notice or the rejected petition. Our office will receive the rejected petition if it is not selected in the lottery. Just as we did for receipt notices, we will notify the employer as soon as we receive the rejected petition.

Q: I am currently working on OPT. How long can I keep working?

A: It depends! See below.

  • If your H-1B petition was selected in the H-1B lottery, you can keep working until October 1 (when your H-1B status becomes effective, unless it’s not approved yet), if you meet the following conditions:
    • The H-1B petition was filed before the expiration of your OPT
    • Your petition was filed as a change of status
    • Your petition is either approved or still pending

If you meet the requirements for the H-1B cap gap, please be sure to coordinate with your DSO at your university to have the I-20 amended. Please keep in mind that if you travel while a change of status request (such as from F-1 to H-1B) is pending, the change of status request will be deemed abandoned and denied. The petition itself should be approved assuming it is otherwise approvable.

  • If you do not know yet if your H-1B petition was selected (you have not received notice of the rejection yet): You can keep working on OPT even beyond the expiration of the OPT, until you receive notice that the petition has been rejected, denied, or revoked. Once you receive notice that the H-1B petition has been rejected (not selected in the lottery), denied, or revoked, your 60 day F-1 grace period will begin. During that time, you may remain in the US, but you cannot work.
  • If your H-1B petition has been rejected, denied, or revoked, and your OPT is still valid, you may continue to work until your OPT expires. When the OPT expires, your 60 day grace period will begin.

Q: What can I do to stay in the US if my H-1B petition was not selected in the lottery?

A: H-1B candidates who were not selected in the lottery may have alternative options:

  • If your OPT will still be valid next April 1, you can continue working on OPT and file again next year.
  • If you are currently on OPT, check to see if you are eligible for the STEM OPT extension of an additional 24 months. Keep in mind that there are new regulations and requirements associated with the STEM extension. We will post separately about this, but be sure to check requirements carefully with your DSO.
  • If you are on OPT, some students chose to continue studying or to begin a new degree program, so that they can remain in the US, and then they file the H-1B again the following year. Some students who do this chose to work using CPT. Please keep in mind that CPT should only be used for its intended purpose, which is to allow the student to participate in a required internship or practicum, as required by their coursework. It should not be used just to be able to continue working in the US. USCIS is aware that many F-1 students use it for this purpose, and you may receive an extremely detailed request for evidence (RFE) about your CPT. In some instances, USCIS could deny the change of status request, if they find that the CPT was improper.
  • If the would-be H-1B candidate is on L-2, he or she may choose to continue working on the L-2 EAD, if their spouse maintains L-1 status.
  • Likewise, if the H-1B candidate is on H-4, the candidate should confirm if they are eligible for an H-4 EAD.
  • There are several other nonimmigrant visa options. You can check out a chart summarizing them here.
  • Finally, consider your family-based immigration options. I have had several H-1B lottery losers who were married or engaged to a US citizen, and ultimately (and successfully) took the marriage-based immigration path. Of course this is only an option if you are truly in love with your partner; marrying for immigration benefits is immigration fraud and there are severe consequences for that.

 We understand that not knowing the H-1B lottery results for sure is anxiety-provoking, and does not easily allow for basic life-planning. We will continue to keep you posted of developments and specific case updates. In the meantime, breathe deeply!

 

Do you need assistance with a family-based or employment-based immigration matter? Please contact our office to learn how we can help. Call us at 804-396-3412 or email at info@sumnerimmigration.com. We look forward to hearing from you!