In a significant announcement for employers and immigration attorneys across the United States, the registration period for the Fiscal Year (FY) 2025 H-1B cap is now officially open. This crucial window, which commenced recently, allows for the submission of registrations for foreign nationals seeking to apply for the highly sought-after H-1B visa. Registrations will be accepted through noon Eastern Time (ET) on March 22, 2024 providing a pivotal opportunity for those aiming to secure their position in the annual lottery for H-1B visas.

 

The H-1B visa program, integral to bringing specialized talent into the United States, particularly in sectors such as technology, engineering, and medicine, sees thousands of employers compete for a limited number of visas each year. This registration period marks the beginning of the process that could lead to the successful attainment of work authorization for foreign professionals, critical for the operations of many U.S. businesses.

 

Concurrently, developments in federal funding have unfolded, with Congress passing a short-term spending bill last week. This legislative move is aimed at keeping some federal agencies operational, including those responsible for immigration services, until March 22, 2024. Meanwhile, a subset of federal agencies will see their funding extended only through March 8, 2024. This temporal alignment of the H-1B registration deadline and the funding provision deadline underscores a period of heightened activity and anticipation in the immigration sector.

 

Employers and their legal representatives are urged to act promptly to ensure their registrations are submitted accurately and within the open period. The limited timeframe, coupled with the cap on H-1B visas, adds a layer of urgency to this annual process. Successful registrations will then be entered into the lottery, with selected applicants moving forward to the next stage of the visa application process.

As of December 2023, USCIS has clarified instructions for those seeking a National Interest Waiver, specifying the use of the new version of Form ETA 9089.

 

Key Points of the Update:

 

• Form ETA 9089 Guidance: The Department of Labor (DOL) has published new instructions on its website for petitioners submitting Form ETA 9089. While documents required for the NIW are submitted directly to USCIS and do not need DOL certification, USCIS has aligned with the DOL's standards for accounting for work experience.
• Supplement A Submission: USCIS has concurred with the DOL's recommendation that petitioners should submit as many copies of Supplement A as necessary to detail the self-petitioner's or beneficiary's work experience comprehensively.

On January 29, 2024, the Department of State (DOS) initiated a pilot program for domestic renewal of visas in the United States. As of March 6, 2024, there are still openings for H-1B nonimmigrant visa holders eligible for renewal within the country, available until they are filled or until April 1, 2024, whichever occurs first. The DOS has observed that the number of applications received has been below expectations, allowing for an average processing time of seven days, significantly quicker than the initially projected four to six weeks as mentioned in the Federal Register. However, this processing time may vary depending on the volume of applications received.

With the H-1B visa filing season upon us, many F-1 students and those on Optional Practical Training (OPT) find themselves navigating the complexities of transitioning from student status to work authorization in the United States. A critical mechanism facilitating this transition is the cap-gap extension rule, an essential regulatory provision that bridges the gap between the expiration of F-1 status/OPT and the commencement of H-1B status on October 1st.

 

 

Originating from a 2008 U.S. Department of Homeland Security (DHS) regulation, the cap-gap rule was designed to address the predicament faced by F-1 students whose OPT authorization ends during the summer, well before the October 1st start date of their H1B status. This rule automatically extends the F-1 status and, if applicable, the OPT for eligible students until September 30th, provided their H-1B petition is filed timely and remains pending or is approved.

 

 

To qualify for a cap-gap extension, an F-1 student's status must expire after an H-1B petition (requesting a change of status effective October 1st) is filed but before the actual start date. If the H-1B petition is accepted and approved, the student's F-1 status and OPT employment authorization are automatically extended. However, if the H-1B petition is denied, withdrawn, revoked, or rejected, the extension ends, followed by a standard 60-day grace period, unless the denial is due to a violation of student status or fraud, in which case the grace period does not apply.

 

 

For students whose H-1B registration application is selected in the lottery, the filing of an H-1B petition by the employer triggers the cap-gap benefits automatically. Although no specific authorization is required, students can obtain a new I-20 reflecting the full cap-gap period validity, which serves as evidence of their continued status and work authorization, if applicable.

 

 

While H-1B petitions traditionally mandate an October 1st start date, the 2024 regulatory change introduces greater flexibility in setting the commencement date, excluding cap-gap cases which must still adhere to the October 1st requirement. Importantly, students can apply for a 24-month STEM extension during the cap-gap period, provided they remain eligible.

 

 

The USCIS and DHS provide guidelines for “data fix” requests, a mechanism used to correct or update a student's SEVIS record in specific circumstances. This is particularly relevant when a student's H-1B status change is no longer desired or if the employment offer is withdrawn, requiring the student to revert to active F-1 status.

 

 

Travel outside the United States during the cap-gap extension is a common concern. It is generally advised against traveling while the H-1B petition and change-of-status request are pending, as it may lead to the abandonment of the request. However, students with approved petitions may travel and re-enter the U.S. in F-1 status before October 1st, given they have a valid F-1 visa and the necessary I-20 documentation.

 

In summary, the cap-gap extension rule is a pivotal regulation for F-1 students transitioning to H-1B status, ensuring a seamless continuation of their stay and employment in the U.S. It underscores the U.S. government's acknowledgment of the value international students bring to the workforce, facilitating a smoother transition from academic to professional life.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.