The H-1B is a temporary nonimmigrant visa category that allows US companies to employ foreign workers in specialty occupation that require theoretical or technical expertise. Typically, the initial duration of an H-1B visa classification is up to three years, which may be extended for a maximum of six years. Below are some key requirements that must be met to be classified as an H-1B Temporary worker:
Employer Employee relationship with the petitioning U.S. Employer
Job must be in a specialty occupation related to the field of study. To qualify as a specialty occupation one of the following criteria must be met:
A bachelor’s or higher degree, or its equivalent is normally the minimum requirement for the particular position;
Degree requirement is common for the position in the industry;
Employer normally requires a degree or its equivalent for the position;
Nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
This year 201,011 petitions were received from the beginning of the season i.e. April 1 to the official completion date on April 5. All the received petitions had equal chances of selection in the lottery. However, master’s degree petitions are counted in both the advanced degree cap and the regular cap, raising the chances of selection. On April 11, 2019, USCIS announced that they have completed the computer-generated random selection process (Lottery) to select H-1B petitions for F.Y. 2020. The petitions that have been selected are sent to the adjudicating service center. If petition is not selected in the lottery, USCIS will return the petition and filing fee unless determined to be a duplicate filing, in which case it will be returned without the fee. USCIS does not send rejection notices for the petition not selected in the lottery immediately, usually USCIS issues a news alert announcing that all rejections notices have been sent. There is no definite date this year, however, based on the last few years data we can expect all the rejection notices to be received in last week of July 2019. Below are the dates from previous years when USCIS sent out the rejection notices:
F.Y. 2019 – July 30, 2018
F.Y. 2018 – July 19, 2017
F.Y. 2017 – July 8, 2016
If you are the lucky person selected in H1B random selection you might be wondering what would happen after that. Below is quick summary of it.
If your employer filed the petition by the standard process and did not include any extra fee with your petition to get the speedy adjudication, then that petition is treated to be filed in regular processing. Your employer or attorney would receive a hard copy of the receipt notice and share it with you. Generally, receipt notices are expected to receive till May end or early June. Checks getting cashed by USCIS is another way of finding out if your petition is picked in the lottery. There is no fixed date for how long does USCIS will take to process your petition because every case is different, and every location has its own processing time. Typically, USCIS takes anywhere from 2-4 months to adjudicate the petition.
If you applied through premium processing, your employer will receive a notification through email with your receipt number. USCIS takes 15 calendar days to process your petition when filed in premium. This year the period of 15 days will begin no later than May 20, 2019.
There are 3 scenarios that would occur once your petition is adjudicated by USCIS:
Case Approved: If your case is approved, your H-1B status would start from October 1, 2020.
Request for Evidence: In this case USCIS will ask you to provide additional information or documents so that it can come to a final determination. After submitting an RFE response your petition will either be approved (in few weeks or if premium then 15 days) or will unfortunately be denied due to various reasons which will be listed in the denial notice.
Denial: USCIS issued a policy memorandum on July 13, 2018 which states that starting from September 11, 2018 USCIS has discretion to deny petition without first issuing a Request for Evidence or Notice of intent to deny if initial evidence submitted does not establish eligibility.
You can track your case by the receipt number here.
While your H-1B is in process you should be mindful of the following:
If your employer filed an H-1B petition to change your status from F to H-1B, it is generally unadvisable to travel abroad while your application is pending. If you do so, USCIS may consider you to have abandoned your change status part of your petition. Even if your petition is approved you would still be required to travel abroad and enter US after your H-1B stamping.
If your petition is selected for processing under the H-1B cap, then at this time you will remain an F-1 student. Even after receiving notice of approval of such H-1B petition, your status does not change until beginning of validity date of the H-1B petition, which is October 1st or later. You should stay in school and maintain a valid F-1 status until the start date of your H-1B petition.
If your status of work authorization expires when you’re your petition is in process with USCIS, you are eligible for Cap-gap. Your current employment authorization will be extended till September 30th.
If you are H-1B is not picked in the lottery or denied in the later stage, you should explore your H-1B options for next H-1B season. Be involved with the process and make educated decisions. Remember that the ultimate responsibility for maintaining your status rests with you, not your employer.
AUTHOR : AYUSHI NIGAM
ASSOCIATE CORPORATE LEGAL, CONSULTADD INC
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