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H-1B Cap Season and What It Means for International Students Applying for a Change of Status from F-1 to H-1B

Recent H-1B Rule Change Stands to Benefit International Students with Advanced Degree from US Institution of Higher Education.

RESTON, Va. (March 26, 2019) – The fiscal year (FY) 2020 H-1B cap season is officially in full swing.  US Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the FY 2020 cap on April 1, 2019.  Once an H-1B petition subject to the cap is filed, the first step is that it must be selected by USCIS under a random lottery. This is because there is greater demand than there are visa numbers, so initial selection is done on the basis of a random lottery.  If one’s H-1B petition is selected, it will then be adjudicated on the merits and the earliest date employment can begin is October 1, 2020.

Previously we reported about two changes to the H-1B program.  One change, regarding how H-1B petitions subject to the cap will be counted, is effective April 1, 2019.  For this cap season and moving forward, graduates with advanced degrees from US institutions of higher education will be selected first, over graduates with bachelor’s degrees. By reversing the order for how cap subject cases are counted, USCIS will consider cases filed on behalf of applicants with an advanced degree from US institutions of higher education first.  This will benefit those with a master’s degree over those with a bachelor’s degree. 

 

What to Expect for the FY 2020 H-1B Cap Season

Here are some things that international students should know and/or expect for the FY 2020 H-1B cap season:

 

  • USCIS will begin accepting H-1B petitions that are subject to the FY 2020 cap on April 1, 2019. An employer may file an H-1B petition no more than six months before the employment start date requested for the beneficiary.  Therefore, for an April 1, 2019 filing date, the employment start date will be October 1, 2019.  It is expected that the filing window for FY 2020 will remain open for one week.

 

  • Employers cannot file multiple or duplicative H-1B petitions for the same employee.

 

  • Generally, post-graduation a foreign student may apply for Optional Practical Training (OPT) and receive 12-months’ work authorization to gain practical training experience that directly relates to an F-1 student’s major area of study.  Students must apply for an employment authorization document (EAD) from USCIS.

 

    • In certain situations, eligible F-1 student with a timely filed H-1B petition and change of status request, whose employment authorization will expire before the change of status to H-1B occurs (typically October 1), may be eligible for a “cap-gap extension.”  The “cap-gap extension” period starts when an F-1 student’s status and work authorization expires and, unless terminated, ends on October 1, the required start date of their approved H-1B employment (assuming their H-1B petition is selected and approved).  If an H-1B petition filed for an F-1 student with a cap-gap extension is denied, rejected, revoked, or withdrawn, the student will have a 60-day grace period (from the date of the notification of the denial, rejection, revocation, or withdrawal of the petition) to depart the United States.

 

    • Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, 2019 while the student's authorized F-1 duration of status (D/S) admission was still in effect.

 

  • Premium processing will be offered in a two-phased approach during the FY 2020 cap season so USCIS can best manage the premium processing requests without fully suspending it as in previous years.

 

    • The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY 2020 cap-subject petitions.  Meaning, if an international student is requiring a change of status from F-1 to H-1B, with an October 1, 2020 start date, you may request premium processing by concurrently filing for such when the H-1B petition is submitted to USCIS.

 

  • USCIS announced a new “H-1B Employer Data Hub” that will be available on USCIS.gov on April 1. The data hub will allow the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state, or zip code.  The idea behind this data hub is to allow the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program.

 

Resources

Click here to access the USCIS H-1B FY 2020 Cap Season webpage.  One feature of this page is that it offers a FY 2020 H-1B Cap Count (i.e., the 65,000 and 20,000 cap numbers) and the “date of last count” which will be updated post-April 1, 2019.

USCIS has provided a checklist for H-1B filings that employers can use to guide them with the basic documents required to be included with each petition.  Click here to view the checklist.

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.