Approved and Pending H-1B Cap Petitions as of October 1, 2019

15:08 23 September in News Updates

October 1st marks the date when H-1B petitions filed under the annual cap are set to take effect.  Below are some important reminders for approved H-1B petitions and options for petitions that remain pending.

H-1B Petitions Approved as Change of Status versus Consular Notification

H-1B petitions reflecting an approved “change of status” will take effect automatically on October 1st.  The I-797 Approval Notice will include an I-94 card at the bottom, which will replace the I-94 admissions record previously issued to the beneficiary.

H-1B petitions approved through “consular notification” do not take effect automatically.  The I-797 Approval notice will indicate that notification of approval has been sent to the listed consulate.  The beneficiary must apply for an H-1B visa at a U.S. Embassy or Consulate abroad (unless visa exempt) and make an entry to the U.S. in order to activate the H-1B and receive a new I-94 admissions record.

Reminders once the Beneficiary is in H-1B Status 

–       Work authorization must be verified or re-verified on Form I-9 to reflect an employee’s H-1B status.

–       F-1 students are not normally subject to Medicare and Social Security withholdings, but H-1B nonimmigrants are.  Therefore, adjustments to payroll withholdings may be required for F-1 students who have changed to H-1B status.

–       Salary adjustments may be required to meet the H-1B prevailing wage as listed on the H-1B petition and certified Labor Condition Application (LCA).

–       Changes in the terms of employment may trigger additional actions to remain in compliance with H-1B regulations.  Please notify our office prior to making any changes to an H-1B worker’s employment, including terminations, salary reductions, and changes in worksite location or position.

–       H-1B workers are encouraged to check I-94 admissions records after each admission to ensure that they were admitted for the validity of the H-1B petition.  Note that admission can be limited to the validity of the employee’s passport.  Remaining in the U.S. after the expiration of the latest I-94 issued can have serious consequences.

–       H-1B petitions have a limit of 6 years.  In order to extend for a 7th year and beyond, the permanent residency (greencard) process must reach a certain stage.  Therefore, we recommend starting the greencard process no later than the employee’s 4th year in H-1B status.

Petitions that Remain Pending beyond October 1st

–     Individuals with Cap-Gap Work Authorization– Cap-gap employment authorization for students with a pending H-1B petition filed as a change of status will end on September 30th.   Until the H-1B petition is approved, students in this group must be terminated from their employment or be placed on an unpaid leave of absence on the expiration of their cap gap work authorization.  However, they may remain in the U.S. while the H-1B petition is pending.  Travel while the H-1B petition is pending will void the change of status benefit and will require the beneficiary to remain abroad until the H-1B petition has been approved and a visa can be obtained (unless visa exempt) for return to the U.S. in order to activate H-1B status.

–     Individuals whose status expires after October 1st– If the H-1B petition was filed as a change of status, the beneficiary may remain in the U.S. while the H-1B petition is pending.  Travel during the pendency of the H-1B petition will void the change of status benefit and will require the beneficiary to obtain an H-1B visa at a US Consulate abroad (unless visa exempt) and re-enter the US in order to activate H-1B status.

Premium Processing for Pending Petitions  

–     Premium processing is available for petitions pending beyond October 1st and may be recommended for those who require an approved H-1B for work authorization.  For instance, Please contact your LAC attorney to determine if premium processing is recommended.

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