October 1st marks the beginning of fiscal year 2027 and the earliest start date for many cap-subject H-1B petitions. Below are important reminders for approved H-1B petitions and for petitions that remain pending.
H-1B Petitions Approved as Change of Status versus Consular Notification
An H-1B petition approved with a change of status will take effect on the validity start date shown on the approval notice. For many cap-subject H-1B petitions, that start date is 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
- Form I-9. Employers must complete any required Form I-9 reverification by the applicable deadline to reflect the employee’s H-1B status.
- Payroll taxes. A change from F-1 to H-1B status may affect Social Security and Medicare tax withholding. Employers should review payroll treatment because the F-1 exemption does not apply after the employee changes to H-1B status, subject to any other applicable tax rule.
- Required wage. The employer must pay at least the required wage stated on the certified Labor Condition Application beginning when the employee enters into employment in H-1B status. Any necessary payroll adjustment should be implemented timely.
- Changes in employment. Changes in the terms of employment may require an amended H-1B petition or other compliance steps. Please notify our office before implementing changes involving the worksite, position, duties, hours, compensation, corporate structure, or employment termination.
- Form I-94. H-1B workers should review their electronic Form I-94 after each admission to confirm the classification and expiration date. The period of admission may be limited by passport validity, and remaining in the United States beyond the most recent I-94 expiration date can have serious consequences.
- Six-year limit and permanent residence planning. 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 beginning of 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 is valid until April 1, 2027, or until the validity start date of the approved petition, whichever is earlier. If the H-1B petition remains pending as of April 1, 2027, students may remain in the U.S. but must be terminated immediately from their employment or be placed on an unpaid leave of absence. 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 maintaining another status or employment authorization — A pending H-1B change-of-status petition does not, by itself, authorize employment. The beneficiary may continue working only while separately authorized to do so. If the underlying work authorization expires before USCIS approves the H-1B petition, employment generally must stop unless another basis for work authorization applies, although a timely filed change-of-status request may permit the individual to remain in the United States in a period of authorized stay while it 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. Please contact your LAC attorney to determine if premium processing is recommended.
This update was prepared by Brianda Renteria-Huber, Senior Associate Attorney – Larrabee Albi Coker LLP.