What’s Happening With My (Employee’s) H-1B Cap Petition?

August 1st has come and gone, and fall is fast approaching. Many H-1B cap beneficiaries and their employers are still anxiously awaiting good news (i.e. approvals) on their H-1B cap petition. We certainly understand everyone’s anxiety and their eagerness to know the update on their case so they can plan their lives accordingly. Here’s where we stand as of August 7th:

USCIS has confirmed that they have finished returning the petitions that were not selected in the H-1B lottery. That means that at this point you should have an H-1B approval, an H-1B receipt notice, or news that your petition was not selected in the H-1B lottery this year.

My H-1B cap petition will be approved before the requested start date of October 1, right?

Unfortunately there is no guarantee that USCIS will adjudicate all H-1B petitions before October 1. In years past we have received H-1B approvals beyond the October 1 start date (especially where we received an RFE for the case). USCIS prioritizes “student” cases where the student is working pursuant to the cap gap authorization, which will end 9/30/2017. However, even in those cases, there is simply no guarantee that USCIS will adjudicate the case before October 1.

If I haven’t heard anything yet on my H-1B cap case, is that bad?

If your H-1B petition is still pending at this point, it simply means that USCIS has not gotten to your case yet. It does not necessarily mean that you will or will not receive a request for evidence.

A special note for cap gap beneficiaries:

If you (or your employee) are working in the US pursuant to the cap gap provision, you’ll want to take note of the following points:

  • Make sure that cap gap applies to you! The cap gap provision only applies to F-1 students in OPT, not to students working on CPT. It also only applies to F-1 OPT students who filed the H-1B petition while the OPT was still valid (not during the F-1 60 day grace period).
  • The cap gap provision lasts until 9/30/2017, but not beyond. If your H-1B petition is not approved by 9/30/2017, you can still remain in the US as long as you filed the H-1B petition while you were in valid status and you requested a change of status to H-1B. However, you will not be work authorized beyond 9/30/2017 based on the cap gap.
  • Premium processing is still not available for most type of H-1B petitions.

The Sumner Immigration Law team is working hard to respond to RFEs quickly, and to keep our H-1B clients, employers and employees alike, updated on information related to their cases as soon as it comes in. We look forward to continuing to assist you!

If you need assistance filing an employment-based or family-based immigration filing, please contact our office at info@sumnerimmigration.com or at 804-396-3412. We are happy to help!