Immigrantly

Immigration thoughts from an Immigration Lawyer.

Current Status of H1B CAP Petitions

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Are you wondering what’s going on with your H1B CAP petition this year? Lottery result? Adjudication result? Request for Evidence (RFE)? Premium Processing? Here are some updates on the current general situation and some tips that may help you.

Lottery Result

The selection process has been completed, and the USCIS is in the process of returning petitions that were not selected. They are using USPS Priority Mail, so watch out for your mails. If you hired a lawyer for the petition, it’s likely that the package will be mailed to your lawyer.

Tips: If you have not received a I-797C Receipt Notice from the USCIS by now, the chance is high that you were not selected. However, do not make any final decision (e.g. quitting a job or departing the U.S.) yet, because there may be a slight chance that you were selected, but for some reason have not received the Receipt Notice yet. You should start preparing for the situation that you are not selected, but do not make the final move until you receive the Rejection Notice from the USCIS confirming that you were not selected. Also, double check if the filing fee checks were cashed out; if they were, that means you were selected.

Adjudication Result and Processing Time

For those of you who were very lucky to be selected, congratulations! The USCIS is processing the cases now. Some clients have already gotten the Approval Notices. Some have received RFEs, and some have not received anything other than the Receipt Notice. It is still unclear how long it will take the USCIS to adjudicate the cases this year, especially with the suspension of Premium Processing.

Tips: Even without Premium Processing, you can still request the USCIS to expedite your case if you meet at least one of the following criteria:

  • Severe financial loss to company or ​person​;​
  • Emergency situation;​
  • Humanitarian reasons;​
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
  • Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
  • USCIS error; or​
  • Compelling interest of USCIS.​

Premium Processing

Starting June 26, the USCIS resumed Premium Processing for certain physicians. However, Premium Processing is still not available for other occupations, and there is no indication when the USCIS will resume Premium Processing for other occupations. This is very frustrating especially for OPT students under Cap-Gap, who must stop working on September 30 if the USCIS does not approve the petition by then.

Tips: If you submitted your H1B petition before your OPT expired, you qualify for Cap-Gap, which will allow you to work until your case is either rejected or denied, or until September 30, whichever comes first. It seems that some school insists that Cap-Gap can last only until a certain date that’s before September 30, but that’s not the usual case. Even if you have not received any notice for the USCIS, your Cap-Gap extension should still be valid.

 

This year’s H1B Cap petition process has been unusual with the suspension of Premium Processing and the last minute announcement of the Memo regarding computer related positions. These unexpected changes are causing a lot of uncertainty and frustration for sponsors, applicants, and lawyers. I really hope that the USCIS will resume their normal processing soon, or at least give more guidance so that we know what to expect. But in the meantime, my advice will be to stay tuned for updates, share your information, and develop backup plans soon. Best wishes to all the sponsors and applicants!

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