How many H-1B cap-subject cases did USCIS receive?

On April 7, 2015, only five days within a hectic H-1B filing season, USCIS announced that they have received enough H-1B cases to reach the statutorily authorized limit for the 65,000 regular quota and also the 20,000 U.S. master’s degree quota. As it turns out, USCIS actually received a total of approximately 233,000 H-1B petitions. While most everyone expected that the cap would likely be reached soon after the filing season opened, the sheer volume of filings in just five days is astounding. The number of cap-subject H-1B cases this year increased by almost 60,000 (30% increase) as compared to the number of cap-subject H-1B cases submitted last year.

Was there an H-1B lottery this year?

On April 13, USCIS ran a random selection process, a.k.a. H-1B lottery, to allocate the available visa numbers among the pool of applicants. First, a lottery was ran for the 20,000 U.S. master’s degree quota. Those cases that were not selected in this first draw were returned to the general applicant pool and USCIS then ran another draw for the 65,000 quota.

What happens next?

USCIS will likely take at least a week or so to complete data-entry for all received cases. Then they will start mailing out receipt notices for the cases selected in the lottery and return the rest of the filings to employers or their attorneys. USCIS does not collect filing fees for those cases that were not selected in the lottery. Rejected filings will include all filing fees with the exception of cases that USCIS determines to be duplicate filings.

What if my case was filed with the Premium Processing service?

USCIS announced that they will start processing cases filed via premium processing starting on April 27, 2015. In practice, USCIS has already started sending receipt notices for premium processing H-1B cases.

I am a student and my OPT expires in the summer. What is cap-gap OPT extension?

Those F-1 students, whose H-1B cases are filed during the OPT validity period but whose employment authorization will expire sometime before the October 1 H-1B start date, will receive automatic “cap-gap” OPT extension. If the H-1B case is approved then OPT is automatically extended until October 1. If the H-1B case is ultimately denied, the cap-gap OPT extension terminates on the H-1B denial date. Also, USCIS must accept the H-1B case for processing for cap-gap OPT extension to apply. F-1 students whose cases are not selected in the random selection process (H-1B lottery) are not eligible for cap-gap extension.

Can F-1 students travel abroad during the summer while their H-1B cases are pending review with USCIS?

There are two components to every H-1B case: the first is the classification petition and the second is the foreign national’s request to change their status to H-1B. While the classification petition approval is not affected by foreign travel, USCIS will deny the change of status request to F-1 student who leave the U.S. while their H-1B cases remain pending. In such situation, USCIS would approve the H-1B classification but deny the F-1 student’s automatic transition to H-1B status that would have otherwise taken effect on October 1. To “trigger” proper H-1B status transition, the F-1 student would then be required to travel abroad one more time and apply for an H-1B visa at a U.S. consulate.

Can F-1 students travel abroad during the summer after USCIS approves their H-1B cases and change of status requests?

Once their H-1B cases and change of status requests are approved, students are allowed to travel abroad and return to the U.S. during the summer months, as long as their OPT (non cap-gap) remains valid or they continue regular F-1 studies. However, there are a few important issues to consider before travelling. Only F-1 students with regular and valid non cap-gap OPT may leave the U.S. and return as F-1 students. Those who have cap-gap OPT extensions are not eligible to apply for F-1 visas or re-enter the U.S. in student status even if they possess unexpired F-1 visas. Students with OPT should be careful not to remain abroad for more than 90 days. Unless it is authorized by the OPT employer or is a regular part of their job duties, extended foreign trips may violate OPT regulations. Finally, consular and also U.S. Customs and Border Protection officers may question whether students applying for F-1 visas have the proper nonimmigrant intent when they also have approved H-1B petitions. Students are required to possess proper intent to leave the United States and return to their foreign residence after their studies are over. Some government officials take the view that having an approved H-1B petition, e.g. intending to work in the U.S. in the near future, is inconsistent with maintaining proper nonimmigrant intent. This has resulted in F-1 visa and even admission denial for some students.