By:  Thomas J. Joy, Esq.

Preparation of Cases

Starting April 1, 2009, the USCIS will accept filings of H-1B cap cases for employment in fiscal year 2010 starting October 1, 2009.  As in the past two years, it is expected that there will be more applications than there are H-1B visas available with the possibility of a random lottery to determine the recipients of the available H-1B visas.  As a result, it is critical that employers start preparing their H-1B cap cases now with the goal of delivery of the applications to USCIS on April 1, 2009. 

Various steps in the preparation process, unless started now, may not be completed in time to file on April 1, 2009.  Diplomas and transcripts may need to be obtained from colleges and universities.  Experience verification letters may need to be obtained from previous employers.  English translations may need to be completed.  Foreign credential equivalency evaluations may need to be obtained.  Finally, the Department of Labor has announced that the processing of the required labor condition application (LCA) will take longer due to increased scrutiny.  As the April 1, 2009 filing date approaches, colleges and universities, translation companies and foreign credential evaluation companies become very busy and often can not guarantee that they can provide the requested service and documentation in time for an April 1, 2009 filing.

H-1B Cap Gap Cases

Regulations now provide that the lawful status of an F-1 student who is the beneficiary of an H-1B petition and request for change of status will be automatically extended along with OPT employment authorization to October 1.  This will allow an F-1 student with OPT expiring before October 1 to stay in the United States and work through October 1 when the H-1B status will take effect. 

17 Month OPT Extension for STEM Graduates

Regulations now provide that graduates with Science, Technology, Engineering and Mathematics (STEM) degrees employed by employers enrolled in the E-Verify program, can obtain a 17 month extension of OPT beyond the 12 months already available.  This can be critical to keep recent graduates in the United States and working if they are not successful in obtaining one of the limited number of H-1B visas on their first attempt.  Note:  The application for the 17 month extension must be filed prior to the expiration of the initial 12 month OPT period.  A timely filing results in an automatic extension of OPT up to 180 days while waiting for a decision on the 17 month extension application. 

Conclusion …

As you can see, proper advance planning and preparation of H-1B cap cases can increase the chances of successfully obtaining one of the limited number of H-1B visas available under the quota.  In addition, proper use of the H-1B cap gap regulation and the 17 month OPT extension regulation for STEM graduates can maximize the time that recent graduates can stay and work in the United States while awaiting an H-1B.   

Immigration Compliance Group is already working on H-1B casework. 

If Immigration Compliance Group is not handling your H-1B case, our attorneys are available to consult with you as well as to offer a 2nd opinion.