Approved and Pending H-1B Cap Petitions as of October 1, 2018
October 1st marks the date when H-1B petitions filed under the annual cap are set to take effect. This year is somewhat different as a large number of H-1B petitions remain pending with USCIS. Below are some important reminders for approved H-1B petitions and options for petitions that remain pending.
Reminders for Approved H-1B Petitions
- Work authorization must be 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 whose status changed to H-1B.
- 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. Remaining in the U.S. after the expiration of the latest I-94 issued can have serious consequences.
Options for Pending H-1B Petitions
- 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.
Can anything be done to speed up the processing of H-1B petitions?
USCIS accepts inquiries on cases that are pending longer than the processing time posted on the USCIS website. At this time, cap-subject H-1B petitions are within normal processing times and are not eligible for inquiry.
The suspension of premium processing of cap-subject H-1B petitions remains in effect until February 19, 2019.
The USCIS announcement extending the suspension of premium processing specifically states that petitioners may submit a request to expedite an H-1B petition if they meet the criteria on USCIS’ Expedite Criteria webpage. Expedite requests are discretionary and are evaluated on a case-by-case basis.