H-1B Petitions For 2014 and What You Should Know - Part 4


(This is the 4th of a four-part article based on a talk given by Alan Lee, Esq., at the Queens Borough Public Library in Flushing, Queens, on March 10, 2014. Today’s topics are common misperceptions of premium processing benefits, the cap gap, and problems after the H-1B petition is approved and before October 1st.)

5 Common misperceptions of premium processing benefits

For H-1B cap season, U.S.C.I.S. allows for premium processing under which for an additional fee, the agency promises to reach your case within 15 days of filing. To utilize its benefits, an additional filing fee of $1225 is required to be paid, and the H-1B petition if filed with a request for premium processing is sent to different addresses in Vermont and California.

So is it worth spending the extra money? It should be noted that U.S.C.I.S. declared an exception last year expanding the premium processing period to 30 days instead of 15 for the H-1B season because of the inundation of petitions. Many petitioners and beneficiaries debate among themselves whether to apply for premium processing. Some believe that the extra amount favors them in being selected under the H-1B lottery. There is no truth to the perception. Is there an actual benefit to giving U.S.C.I.S. another $1225? Believe it or not, such a request on form I-907 may have some benefit. The unfortunate part about this is that the benefit stems from the inability of U.S.C.I.S. to quickly receipt and adjudicate the H-1B cap cases. The extra amount especially benefits those who require or want knowledge as to the fate of their petitions at the earliest moment. Premium processing means faster knowledge of whether the case is accepted under the lottery as U.S.C.I.S. will email a receipt instead of sending it through snail mail and that it will continue processing the case under premium speed where it issues a request for further evidence (RFE) and receives a response. The faster receipt is no mean benefit to a worried organization and beneficiary. Although one would think that there is little need for premium processing where the work is not slated to begin for another 6 months (the time lag between April to the beginning of possible work on October 1), U.S.C.I.S. has an annoying habit of taking 4 to 6 months and even longer to adjudicate many petitions.

6 The Cap Gap.

What's the gap? It is the gap between the end of optional practical training (OPT) and October 1st. The rule is that if your OPT extends until April 1 or later and your H-1B application is filed during the OPT period, you are allowed to stay and work until September 30 as long as your case is still under consideration by U.S.C.I.S. If your OPT ends and your H-1B petition is submitted during the 60 day grace period, you are allowed to remain in the country until the same time but not allowed to work. Travel in and out of the country in reliance on the cap gap extension is not allowed and leaving the country would normally mean only being able to return when the H-1B work becomes available.

What happens if you have a gap in legal status between the filing of H-1B status in April and October which is not covered by a cap gap extension. Filing of the H-1B if not in OPT or the 60 day grace period only allows you the period of legality that you have at the time of filing the petition. Examples are a student with an I-20 student acceptance form which only extends until June or a B-2 visitor whose legal stay ends in August. In those cases, a timely filing of the H-1B while in legal status would likely result in a change of status denial since the H-1B is not capable of coming into effect until October 1 at the earliest. What are your options? A B-2 visitor could conceivably request an extension to cover the time. An F-1 student could obtain a further I-20 until October. You could try and find some other type of non-immigrant status for which you are qualified. In our viewpoint, an F-1 student in that situation would find it easier to continue going to school until October.

7 Problems After the H-1B petition is Approved and Before October 1

Now, issues after your case is approved but before October 1 - we talked about traveling during the period of a cap gap extension. Is the situation different when you have the H-1B petition already approved and it is not yet October? The answer is no. The situation remains the same. It may be different if you are not just on a cap gap extension – for example, your OPT is until October 1st, your H-1 is already approved, and you have both EAD and valid F-1 visa in the passport. With these, you can usually travel without difficulty since you would not have to obtain another visa before returning. But if you did not have the valid F-1 visa, you would in most instances have to interview with the American consular officer who may believe that you should best wait in the home country until the H-1B visa becomes available.

Problems with the sponsoring employer - We are asked this question a lot as to what happens if there is a problem with the petitioning employer before October 1 and even after October 1. The answers are a little murky still at this stage, but it appears that where the H-1B petition has been accepted for filing and is either pending or approved and the employer requests U.S.C.I.S. to cancel the filing or revoke the approved petition, the cap number is supposed to be recaptured for further use on the waitlisted cases. Where there is no cancellation or revocation, the cap number is already assigned and is transferable under a H-1B transfer petition.

That concludes our H-1B talk. I and my staff wish all H-1B applicants and H-1B employers the best of luck on the petitions.

This article © 2014 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.