Thursday, March 8, 2012

Guidance for H-1B Cap Gap Issues in Upcoming H-1B Cap Season

Get ready employers, the H-1B cap season is right around the corner!  As an immigration lawyer in Columbus, Ohio I would like to provide this update to H-1B employers. In anticipation of the upcoming H-1B cap season, which begins on April 1, 2012, this article discusses what an H-1B candidate currently on OPT or in F-1 status can expect when his/her OPT expires during the summer. 

This article outlines the H-1B cap gap rules and provides some guidance for those H-1B candidates who wish to take advantage of the cap gap rules. 

The H-1B Visa Cap:
The H-1B visa category allows employers to file new H-1B visas on behalf of foreign nationals working in the United States on optional practical training (OPT) in F-1 status.  The first date that an H-1B visa can be filed is April 1st.  The H-1B cap is reset each fiscal year, which for the USCIS begins on October 1st.  An H-1B employer is allowed to file six months in advance of the new fiscal year, thus the April 1st cap date.  In 2012, with unemployment waning, H-1B employers are encouraged to process their H-1B visas as close to April 1 as possible given that the H-1B visa limit of 65,000 is likely to be reached quicker this year than it has in the past.

H-1B Cap Gap:
USCIS has put forth an Q&A on the H-1B cap gap, which can be accessed here.  Here is a quick summary of the rule: For those recent graduates working on OPT or in F-1 status, the H-1B cap gap allows them to continue working in the U.S. after their OPT expires, if the employer has filed a bona fide H-1B visa petition on behalf of the worker before their OPT or F-1 status expires.  In that case, the potential H-1 worker may remain in the U.S. and continue to work while the H-1B is pending and/or is approved, even though their OPT expires at some point this summer.  The official change of status from F-1 to H-1B will not occur until October 1st, but under the cap gap rules, the OPT is automatically extended until October 1, allowing the foreign national to remain in the U.S. without having to return to home to process the visa.  Previously, this situation resulted in the H-1B candidate having to leave the U.S. and process his/her H-1B visa at the consulate abroad.  The H-1B cap gap rules have eliminated this problem.

Employer's Obligations:
An employer should begin to analyze the H-1B candidate's status immediately.  If the candidate is on OPT and that OPT expires, for example on June 15th, the employer must file the H-1B visa petition before the expiration of the OPT.  Filing the LCA at least a week in advance of the H-1B petition is necessary as the LCA takes around 7 calendar days to be approved.  Once the LCA is approved, the H-1B visa petition may be filed.  While the LCA is pending for those 7 days, an immigration lawyer should obtain all the information for the H-1B candidate and prepare the H-1B cap gap petition.  This will ensure that the H-1B cap gap rules are met.  There is generally no need to file premium processing in this situation.  The H-1B petition may be pending when the OPT expires, so long as it is eventually approved before October 1st.  Contact me today for questions on the employer's obligations.

Contact Matt Porter for H-1B Cap Gap Questions:
If you have a question about the H-1B cap gap rules, contact Ohio immigration lawyer Matthew Porter today.  Mr. Porter has handled hundreds of H-1B petitions over the past four years throughout Columbus, Ohio and all over the country.  I represent businesses and individuals worldwide in complex tax controversy and immigration matters, including H-1B visa processing, PERM processing, as well as all other employment based immigration.  Contact Mr. Porter for a consultation today.