H-1B Cap FAQs - FY2023

USCIS Announces FY2023 H-1B Cap Dates

USCIS announced fy2023 cap dates on Friday, January 28, 2022. Here is What you need to know:

February 21, 2022, 12:00pm EST - Registrants (employers and their attorneys) will be able to create new USCIS accounts.
March 1, 2022, 12:00pm EST - March 18, 2022, 12:00pm EST - Initial registration period for the FY2023 H-1B cap lottery. During this period, prospective employers and legal representatives will be able to complete and submit their registrations using USCIS’ online H-1B registration system.
March 31, 2022 - USCIS will send notifications of selection via users’ myUSCIS online accounts.

General H-1B FAQs

When will I find out if my registration was selected in this year's lottery?

ANSWER: USCIS will announce on or around April 1st that it has completed the lottery of H-1B registrations and finished notifying petitioners whose registrations were selected. Your ImmiPartner legal team thoroughly reviews the selection notices for all applicants as they are received, and if your registration was among those selected, our team will notify you via email between April 1-7. For our corporate clients, you can also see the real-time status of your case via Bridge.

Is there anything new about the H-1B Cap lottery this year that I should know about?

ANSWER: Starting with FY21, USCIS implemented a new online registration process for H-1B cap cases that begins in the weeks leading up to April 1. While the registration window typically opens in mid-March, USCIS will announce the specific dates of registration for FY2023 and those details will be updated as soon as they are available. Companies file an online registration for each individual they seek to sponsor for a cap-subject H-1B petition. USCIS then conducts a lottery to select registrations. If a registration is selected, the company will be eligible to file a full H-1B cap petition for the individual named in the selected registration.

Will my case be filed with Premium Processing?

ANSWER: There is no Premium Processing (PP) for the registration portion of the H-1B lottery. However, after your case is selected for processing in April, whether it will be filed with PP depends on your company’s policy and whether USCIS will accept PP for lottery cases. USCIS, in its discretion, may temporarily suspend PP for certain case types. Please check with your HR representative if PP will be used for your H-1B cap matter, if it is available.

If PP is used, this means USCIS will respond to your filing within 15 calendar days after they have received the package.

What if I am not interested in moving forward with filing an H-1B application this year?

ANSWER: While you may be able to continue working under your current status at this time, please note that H-1Bs are only available in limited quantities at very specific times of the year, therefore we want to ensure you have as many opportunities to apply for an H-1B as needed to help ensure your continued work authorization. Please discuss your options and specific status with your legal team before making any final decisions.

What is the difference between H-1B “change of status” petitions and H-1B “consular notification” petitions?

ANSWER: A “change of status” petition enables your status to officially change to H-1B Specialty Occupation on October 1, without the need to leave the US to change your status. You must be present in the US during the entire duration your case remains pending. If you depart the US while your change of status petition is pending, the request to change status will be deemed abandoned and your case, if approved, will be approved as a Consular Notify petition.

A “consular notification” petition is where your status does not automatically change on October 1, and you will need to leave the US, obtain an H-1B visa stamp (if applicable) at a US consular post abroad, and return to the US using your visa stamp and H-1B approval notice in order to activate H-1B status.

The method of filing depends on where you are when we file the petition and how you plan to activate your H-1B status.

If you are currently in the US and will be in another valid status (e.g., F-1, TN, L-1) at least until October 1, we can file your H-1B cap petition as a “change of status” petition, meaning that your H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later.
If you are not in the US at the time the H-1B petition is filed, if you do not have another status valid until October 1, or if other situations (explained below) apply to you, we will file your H-1B petition as a “consular notification” petition. In this situation, the US consulate in your home country is notified that you will be going there to apply for an H-1B visa, and your H-1B status takes effect after you obtain the H-1B visa and use it to enter the US

How long will my H-1B status be valid for?

ANSWER: The initial H-1B petition is typically approved for up to 3 years, and your employer may petition to extend your status in the future until a total of 6 years in H-1B status has been reached. Please note that, due to filing constraints in some circumstances, your initial H-1B petition may be valid for less than a full 3 years. However, you will still be eligible for future extensions that will give you a total of 6 full years of H-1B status. Please note, any time spent in L-1 status counts towards the 6-year H-1B maximum.

How do my spouse and children get H-4 status?

ANSWER: If your family members are in the US with you, and in valid status, then their application for Change of Status to H-4 status can be filed concurrently with your H-1B petition. If you are reliant on Cap-Gap relief, the H-4 application(s) must be filed prior to your expiration date. Otherwise, they will have to apply for H-4 visas at the consulate (unless visa exempt)after your H-1B status takes effect on October 1, 2022. If your H-4 dependents are visa-exempt, then they can enter the US with you or after your H-1B status becomes effective.

Note that if you are not selected in the lottery, then your spouse will not receive the H-4 change of status. If your spouse is currently dependent on your present status, then they must change their status with you.

Can my spouse and children work in H-4 status?

ANSWER: H-4 spouses are allowed to file for work authorization when you reach an advanced part of the whole green card process, namely if you have an approved I-140 or if you have received a post-6th year extension of H-1B status. If you do not have a green card process in place, then it will likely take quite some time before your spouse can receive work authorization. Note that EAD applications take 3-8+ months to process with USCIS. Once approved and the card is in hand, your spouse can work. H-4 children are not allowed to work under this status.

When can I start the permanent resident (green card) process?

ANSWER: Technically, you may be eligible to start the green card process, regardless of whether you are in H-1B status or not.

Check with your employer to confirm whether you are eligible to initiate the green card process per the company’s immigration policy as many companies have internal guidelines for initiation of these applications. For example, your employer may require that you be employed with them for at least one year and hold good standing within your company before being eligible to proceed. If you are eligible and a client of ImmiPartner, your employer would initiate a green card project with us through our technology platform, Bridge.

Please remember there are significant travel restrictions at certain parts of the green card process for certain status holders (e.g., TN, E-3, O-1), so please discuss these with your ImmiPartner legal team.

It is my last year applying for the cap. What if I am not successful?

ANSWER: We wish you the best of luck in the upcoming lottery selection. We understand how important it is for you to retain your work authorization in the US. However, should you not be selected, here are a few things to consider:

If your work authorization and the authorized period of stay will be expiring soon, you may need to begin preparing to depart the US. Once your valid period of stay has expired, you will be placed on USCIS’ standard 60 days grace period for a majority of visa types. During this time, you will either need to transition into another eligible visa category to remain work authorized, or you will have to begin to prepare to depart the US within 60 days after your status has expired. Please do not hesitate to contact your ImmiPartner legal team to discuss your options.
If you were not selected in the lottery, please note that your dependent(s) status may also be at risk. If your spouse and children are dependent on your status, they will be placed on the same 60 days grace period if your status expires in the US meaning you will have 60 days to adjust to a new status or prepare to depart the US.
Though not a guarantee, if USCIS is unable to meet their required case amounts after the first round of selection, USCIS may institute subsequent rounds of selection to meet their required total. Your legal team will notify you if USCIS will pursue another round of selection and when that may take place.
If you are currently graduating from a Bachelor’s program and will be running out of work authorization before October 2022, you may consider returning to school to pursue a graduate degree to remain in the US. Graduate degree holders may be able to consider an alternate degree program that can help them remain in the US. Please reach out to your international student office and speak to your designated school official for more details.
If you have made significant contributions to your field of expertise and could be considered at the top of your field, you may be eligible for an O-1 visa which would allow you to remain and work in the US. Please reach out to your ImmiPartner legal team to have your case assessed for a possible O-1 visa. Please note that there is a high level of scrutiny on this visa category so your case may not be a good candidate if you are earlier on in your career progression.
Speak with your company’s mobility team/HR representative to see if there are job opportunities within your company located outside of the US that may support a future L-1A/L-1B application for you. Please note that this visa type would require one continuous year of employment outside of the US with an affiliated company or subsidiary.
Failure to be selected in this year’s H-1B lottery will not impact your chances for future H-1B lottery proceedings.

Could I get Cap-gap if I file for Consular Notification?

ANSWER: If you file your petition for consular notification then you will no longer be eligible for a bridge in work and stay authorization under the Cap-gap rule. Your work authorization will terminate with your OPT expiration. Therefore, if you intend to rely on Cap-gap you will need to file your petition as Change of Status which will have an effect on your travel plans after your petition is selected in registration and filed with USCIS in April 2022. Please see the travel section for further details on traveling after your H-1B cap petition is filed.

What document shows my H-1B status in the US?

ANSWER: The Form I-94 Arrival/Departure Record, a document generated when you enter the US, shows your status in the US. If your case is filed as a change of status, then the bottom portion of the I-797 H-1B approval notice will include a Form I-94, indicating that your H-1B status will take effect on October 1. The H-1B visa stamp in your passport is solely used to apply for entry to the US; it does not control your status once you are in the US. However, the H-1B visa stamp must be valid for you to enter the US in H-1B status after foreign travel.

Timing of the H-1B Cap Registration and Filing Process

When will ImmiPartner start preparing my case?

ANSWER: Our team will start reaching out to our corporate clients in January 2022 to remind you to start the process. You may be asked to update your profile information and also to complete an online intake questionnaire. On average, it should take approximately 15-20 minutes to review your existing information and upload any documentation required.

What happens once ImmiPartner receives all of my information and supporting documents?

ANSWER: Our team will gather the necessary information to submit your entry into the online registration system within the appropriate registration window. Our team will also begin preparing your application as soon as possible, in anticipation of you being selected in the lottery after the pre-registration process. In early April, our team will begin finalizing applications for filing (requesting new I-94s if you traveled, requesting new pay stubs, etc.) to be ready to submit your application within the filing window (April 1 - June 30).

How will I know if my legal team is working on my application?

ANSWER: ImmiPartner has partnered with Bridge to provide an online system that allows you to follow the progress of your case. This is available to you 24 hours a day, 7 days a week. Please feel free to check the status of your case through the platform and complete any outstanding tasks available to you.

Will my case be processed as a “Consular Notification” petition or a “Change of Status”?

ANSWER: Most H-1B cap cases are filed as a Change of Status filing as a matter of course, especially for individuals relying on Cap-gap relief and individuals who may be losing status/work authorization shortly. However, each case is assessed individually, and the processing is determined on several factors:

Do you simply prefer to have your case filed as a Consular Notification petition, where your status in the US is not affected until you go to a US consulate abroad, obtain the H-1B visa, and then enter the US to activate your H-1B status?
Are you eligible for a Change of Status filing, meaning will you be in valid status on April 1 through October 1?
Did you ever hold J status? If you were subject to the two-year residency requirement, proceed with either obtaining a No Objection Letter/Waiver to satisfy the requirement, or organizing documentation establishing that you resided in your home country for at least two years (not just outside of the US).
If you are subject to the two-year residency requirement and will not be able to obtain a J waiver prior to filing your H-1B, your case will be prepared as a Consular Notification to preserve your current status.
Are you subject to export license requirements?

Your legal team will review whether there are any other factors specific to your case that could affect your filing strategy. If there are any mitigating circumstances why you would not want your case to be filed as a Change of Status application, please alert your ImmiPartner team as soon as possible.

What can I expect as we get closer to April 1?

ANSWER: For those selected in the lottery, ImmiPartner aims to have all H-1B petitions complete and ready to be sent to the immigration service for delivery in April 2022 barring any unforeseen circumstances. The filing window will be open for 90 days for selected petitions, so applications technically will have until the end of June to be submitted. There is no need to worry about the status of your application, as your legal team will send you an email letting you know your application has been finalized for submission to USCIS. Additionally, rest assured that there is a multi-layer review process during the final stages. Please make sure to check Bridge for up to date information on where your case is in the process.

Is there a deadline to file an H-1B in the Cap?

ANSWER: Registration will be open for at least 14 days during March 2022. Once USCIS has announced the specific registration window, we will update that data here. All cases that want to be included in the lottery must register within the specified window. If selected in the registration, your employer will file your H-1B petition with USCIS during the filing window which opens on April 1 and ends on June 30.

How soon will I know if I have secured an H-1B number?

ANSWER: USCIS will run a lottery on the pool of registrations no later than March 31.

ImmiPartner will inform all those who are selected during registration during the first week in April. In addition, the status of your case will be reflected in Bridge.

Where will my approval package be sent?

ANSWER: ImmiPartner will be sending the approval notice to the recipient designated by your employer, which may be the company’s address. Please check with your company and legal team if you would like the approval notice sent elsewhere. We always double-check with the company regarding the approval package address before sending it out. We will also inform you of the courier tracking number when the package is sent out.

How soon will I receive the approval notice once my case is approved?

ANSWER: It can take up to a 2+ weeks for us to receive the original approval notices in our office from USCIS. We will then prepare the approval package. We process the approval notices diligently on a first in/first out basis. It will likely take a few weeks for us to process all of the approval notices, but if you have an urgent need to travel abroad and the original approval notice is required by the consular post you are planning on attending, please do not hesitate to contact us. Please note that there may be unforeseen delays with the US Postal Service so there is a chance your approval notice may take a bit longer to be received by our office.

Travel

Can I travel while my case is being processed?

ANSWER: If we are filing your H-1B petition with a request to automatically change your status to H-1B on October 1, you must be in the US at the time the petition is sent to USCIS and during the entire time the case is pending with USCIS. This will normally be from April 1 until mid to late July.

If you absolutely must travel during this time period, please let us know, and we can file a consular notification petition for you. Please note that if you choose the Consular Notification option, you may have to travel at your own expense, unless your company policy indicates otherwise, to activate your H-1B prior to your current expiration.

See more info on Travel under the FAQs related to your current visa category.

Are there any travel restrictions I need to be aware of?

ANSWER: For the time being, and absent any new policy guidance from the current administration, you should not expect additional or different scrutiny on the immigration front when you travel. However, given the COVID19 pandemic, it is strongly advisable for you to check any public-health related restrictions prior to travel as those requirements could develop quickly. We are keeping an eye on any possible immigration policy changes and will keep you all updated if any changes go into effect. However, we also recommend that you stay in contact with your legal team and advise them of travel plans so they could advise as needed.

What information will I need to get my H-1B visa stamped at a US Consulate abroad?

ANSWER: You will need a copy of the H-1B approval notice, which will be made available to you through the Bridge Team, and a copy of the petition. Although most US consular posts will accept a copy of the notice, in certain high-volume locations, the original notice is preferred. Once your case is approved, a copy of the petition will be made available to you and can be accessed by logging into Bridge. In addition, you will need to review the website of the US Consulate in your home country as to what specific documentation they require as every Consulate has different application procedures and requirements.

Is there any reason I should avoid traveling after April 1st?

ANSWER: If you require Cap-gap authorization to maintain permission to work until your H-1B is activated, you should request a change of status filing and defer your travel until after your petition is approved. Traveling before your H-1B application is approved will jeopardize your continued Cap-gap authorization. If you do not intend to rely on Cap-gap and need to travel post-April 1st, it would be advisable to file your petition as a Consular Notification matter.

I am currently abroad and my H-1B petition is being filed as a consular notification petition. Can I travel to the US after my petition is filed and while it is processing?

ANSWER: Visiting the US after the H-1B petition has been filed is possible, provided you have another valid visa status to use or you are a national of a country under the visa Waiver Program (commonly known as ESTA). However, travel may not always be practical or advisable. It is critical that your visits to the US comply with permissible activities under the visa category you are being admitted in. If you will be entering in business/tourist visitor status and not in a work-authorized status such as H-1B, E-3, or TN,permissible activities will only include tourism, attending business meetings or conferences related to your job ABROAD (NOT the US role that will start in October), and similar non-working trips.

Once your H-1B petition is accepted and entered into USCIS’ system, it is possible that an officer could ask you about it at the airport when you arrive as a visitor. If that happens, you will need to show evidence that you are coming only as a visitor for a short trip and that you will not be conducting any impermissible work activities in the US. A round-trip ticket (proof of plans to return to your home country) is essential. It may also be helpful to bring documentation of your intent to return home after your short US trip, such as a letter confirming your employment at your foreign job. Note that if you fail to convince the officer that you are coming just for tourist or business purposes, he/she could refuse you entry and ask you to return to your home country. This would not usually impact the H-1B, but it is a very unpleasant experience to go through.

Employment Changes

What if my role changes or is about to change (e.g. upcoming promotion or lateral change)?

ANSWER: Role changes might require an amendment to your H-1B. Please contact the ImmiPartner team working on your case with the details of the role change (job title, job description, salary, location) to determine if an amendment might be required. Note that if an amendment is required, you will need to have it filed first prior to starting in your new role. Please contact your legal team working on your case for assistance.

What if my geo-location changes or will change?

ANSWER: H-1Bs are location-specific so a change in location might require an amendment before you are allowed to make the move. Please contact your ImmiPartner legal team working on your case for assistance.

What happens if I decide to change my start date with my employer?

ANSWER: If your start date changes at any time you should contact your ImmiPartner legal team immediately to determine whether the change will affect your status in the US and therefore require an amended filing with USCIS.

I am required to obtain an Export Control License. How does that affect my H-1B case?

ANSWER: In rare circumstances where your position involves work with export controlled technology identified on US export control lists (often relating to national security, foreign policy, and economic objectives, etc.), the company may be required to obtain an Export Control License prior to you beginning employment in H-1B status. If that is the case,your employer should handle that process for you. You will not be able to begin your employment until that license is issued. Therefore, if your license is not issued by August 1, please contact your ImmiPartner legal team so that we can determine whether any amended filings should be made with USCIS.

Not Selected in the Lottery

I was not selected in the H-1B lottery and my US work authorization is expiring soon. What can I do?

ANSWER: We hope your registration is successful, but in the unfortunate event you are not selected, you will need to make sure you have valid US work authorization to continue working in the US or make plans to work in another country. Maintaining your work authorization is critical, so it is important to plan ahead.

If your work authorization and authorized period of stay will be expiring soon, you may need to begin preparing to depart the US. Depending on your status, once your valid period of stay has expired, you may be be placed on a grace period lasting 30-60 days. During this time, you will either need to transition into another eligible visa category to remain work authorized, or you will have to begin to prepare to depart the US during any allotted grace period to avoid accruing any unlawful presence. Please do not hesitate to contact your ImmiPartner legal team to discuss your options.
If you were not selected in the lottery, please note that your spouse and/or children’s status may also be at risk. If your spouse and children are dependent on your status, they will be placed on the same grace period if your status expires in the US to either depart or change into another visa status.
Though not a guarantee, if USCIS is unable to meet their required case amounts after the first round of selection, USCIS may institute subsequent rounds of selection to meet their required total. These subsequent rounds of selection may occur in July 2022 or after, and your legal team will notify you if your lottery entry was selected in another round of selection in 2022.
If you are running out of work authorization you could consider returning to school to pursue a graduate or post-graduate degree to remain in the US. You may also be able to consider an alternate degree program that can help you remain in the US. Please reach out to your international student office and speak to your designated school official for more details.
If you have reached a high level of accomplishment within your area of expertise, you may be eligible for an O-1 visa which would allow you to remain and work in the US. Please note that there is a high level of scrutiny on this visa category so it may not be advisable for those who are junior in their careers and have not yet received recognition or have been involved significant projects that can be credited to their name. If you believe that you may have a case for the O-1 visa, please reach out to your ImmiPartner legal team to see if an O-1 visa assessment may be appropriate.
Speak with your company’s mobility team/HR representative to see if there are job opportunities within your company located outside of the US that may support a future L-1A/L-1B application for you. Please note that this visa type would require one continuous year of employment outside of the US with an affiliated company or subsidiary in a qualifying role.
Failure to be selected in this year’s H-1B lottery will not impact your chances for future H-1B lottery proceedings.

What else can you do?

ANSWER: You are encouraged to have an initial conversation with your manager to begin discussing potential plans in case your H1-B registration is not selected in the lottery. (Note: It is important for you to reach out to your manager, Global Mobility Team, or HR to discuss a backup plan and ensure viability and proper approval from a visa/immigration and business perspective. It is critical you start contingency planning as soon as possible. In the current environment of changing travel bans and restrictions, immigration and global mobility is extremely challenging. Planning ahead and maintaining flexibility is key.

What is my timeline for finding another job?

ANSWER: It would be advisable to allot six to eight months, if not more time, to find and start a role abroad. If available, you will still need to secure a transfer offer from your employer for a location outside the US. Depending on the location of your work, you may need to secure an immigration visa for your new location. The visa process alone can often take months, so starting early is important. If you are able to secure a new job, you should start working in your new office before your US work authorization expires to prevent any potential gaps in employment, which could impact stock, benefits, etc.

I am eligible for a STEM Optional Practical Training (OPT) extension. What do I need to do?

ANSWER: If your profile is already on the Bridge platform and you are actively working with a CS team member with an active case, our team will track your OPT Employment Authorization Document (EAD) expiration, but it is an important date for you to remember, too as you are responsible for maintaining work authorization. Many schools’ DSO/ISSO will provide extensive guidance on STEM OPT application procedures, so please do reach out to them directly up to 6 months prior to your OPT expiration. That way, you could begin preparing the training plan you will need in order to request a new I-20. Once granted, your STEM extension will allow you to work in the US for an additional 24 months beyond the expiration of your OPT authorization.

I might qualify for a different US visa. How do I start the process?

ANSWER: Please do not hesitate to reach out to your legal team if you believe you qualify for another visa type. Your ImmiPartner legal team will be assessing all cases not selected in the lottery to determine alternate options and the impact to your work authorization.

Can I start the green card process now?

ANSWER: While it is technically possible to start the employment-based green card process at any time, whether it is advisable for you will depend on your nationality, professional background, and whether your employer is willing and able to sponsor you for the green card immediately. If you have a family-based green card option open to you, it would be advisable for you to speak with immigration counsel who is representing you in that capacity. One important caveat to note is that starting the green card process alone will not allow you to immediately have work authorization.

Do this year’s H-1B results impact my chances in the H-1B lottery next year?

ANSWER: No, if you are not selected during H-1B registration, it will not impact your chances of being selected next year. If you are working in the US in Q1 of 2023, we may be able to help you file another H-1B cap registration next year with your employer’s continued sponsorship.

If I leave the US, will my employer file an H-1B cap case for me next year?

ANSWER: If you are outside the US, your employer will determine if we will submit an H-1B cap registration

Can I apply for both an H-1B and an L-1 visa?

ANSWER: It is possible to pursue an H-1B and L-1 visa simultaneously. However, there is often no need to apply for both. L-1 visas require an employee to spend a year abroad in a qualified specialized knowledge or managerial role. An employee abroad is much more likely to get an L-1 than be selected in the H-1B lottery. If you are or will be abroad, you may inquire your employer if L-1 visa sponsorship is possible within the company’s immigration policy once you are eligible (you have spent 365 days outside the US) and have a transfer offer to the US. You can read more about L-1 eligibility criteria here.

Can I travel to the US while I am waiting for an L-1 visa?

ANSWER: Yes, you can travel to the US for business or vacation, but time spent in the US does not count towards your one year of employment abroad needed for the L-1 visa. For example, if you spend 30 days in the US during your year abroad, you would need to be outside the US for 395 days to qualify for the L-1 visa, instead of the normal 365 days.

F-1 Student FAQs

H-1B Status for F-1s

What if I am not interested in moving forward with filing an H-1B application this year?

ANSWER: As an F-1 visa holder, you are limited in the amount of time you can stay and work in the US. Even if you currently have work authorization (CPT, OPT etc), you will need a long term work visa to be able to continue working in the US once that work authorization runs out. Additionally, if your employer does allow you to begin the green card process while in F-1 status, you may have issues traveling on an F-1 visa during that process. Therefore, the H-1B would provide travel options during the permanent residence process should you be subject to long processing or wait times.

Does the H-1B filing affect my taxes or paycheck?

ANSWER: Should we file a Change of Status (versus Consular Notification), your status will automatically change from F-1 to H-1B status on October 1. As a result, you may be subject to FICA taxes that you had not previously been subject to. Please check with a qualified tax advisor for additional information.

Travel

I am currently in the US in F-1 status and will be relying on Cap-gap, can I travel once my case is approved?

ANSWER: If you are already relying on Cap-gap, no, you are not authorized for travel until you can do so under the H-1B petition.

Before making any final travel plans, please make sure to discuss your options with your university advisor and your ImmiPartner legal team to understand all of the risks.

I am currently in the US in F-1 status with an EAD valid beyond October 1, can I travel once my case is approved?

ANSWER: If you are not relying on Cap-gap and wish to travel between the time the H-1B is approved in mid to late April and October 1, you would be doing so in your current F-1 status and would therefore need an unexpired visa stamp (unless visa exempt), a valid I-20 annotated for travel and issued within the last 60 days, and your unexpired EAD card. As long as you return to the US in F-1 status before October 1, 2022, the automatic Change of Status to H-1B will still go into effect. Make sure to check in with your university prior to departing the US..

What are the risks if I am currently in the US in F-1 status with an EAD valid beyond October 1, and I want to travel once my case is approved?

ANSWER: It is important to note that we routinely hear stories of people whose F-1 status in their school’s SEVIS system has been mistakenly cancelled out prior to October 1 because of the H-1B approval. This can cause a problem returning to the US after traveling abroad. You should confirm with your school both before departing and again just prior to returning to the US that your F-1 status in the SEVIS system is still intact and ensure you do not need a new I-20 for any reason. Note that as of October 1, your change of status will be effective and any international travel after that date would require you to visit a US Consulate to obtain the H-1B visa stamp in your passport in order to return to the US in H-1B status (unless visa exempt). You cannot use your F-1 visa after your Change of Status goes into effect, even if it has time remaining on it.

I am in F-1 status and was not selected in the lottery, and my Optional Practical Training Employment Authorization Document (OPT EAD) expires this year. How long can I remain in the US?

ANSWER: You can continue to work for your employer in the US until your EAD expires. Once your EAD expires, you will not be able to work in the US and will need to be removed from payroll.

If you are transferring to a company office abroad, you should start working in your new office before your EAD expires.
If you will not be transferring to a company office abroad, you have a 60 day grace period to remain in the US to wrap up affairs, but you cannot continue working after your EAD expires.

OPT Issues

I want to apply for OPT, can your office help me with that?

ANSWER: F-1 visa status and OPT is entirely managed by your university sponsor in the US so your employer through our representation of the company will not be able to assist with your initial application. You should contact your school’s international student office directly to assist you in that application. Please keep us updated on the OPT filing and approval and be sure to send us a copy of your OPT card once you receive it.

I have OPT, but want to pursue a STEM extension, will your office help me with that?

ANSWER: Yes, we may be able to assist if your company offers this service as a benefit. So long as you file your STEM OPT extension prior to your current OPT expiration date, your work authorization is automatically extended for another 180 days beyond the OPT’s expiration date. Once granted, the STEM extension would provide for additional work authorization up to 24 months beyond the OPT expiration date.

If my case is selected in the lottery, should I still apply for my STEM OPT extension?

ANSWER: It would be advisable for you to go ahead and apply for the STEM extension, if available to you, as a backup plan in any case. If your H-1B is already approved and you are certain you will be able to switch into H-1B status prior to the expiration of your OPT work authorization (or cap-gap), then there is no need to apply for your STEM OPT extension.

I have OPT, do I still need an H-1B Petition?

ANSWER: If you intend to work in the US beyond the duration of your available employment authorization, yes. Due to the high usage of H-1B Cap numbers contributing to no guarantees that you will be selected in any round of the cap lottery, it is advisable to apply for an H-1B regardless of how much OPT time you have remaining.

What is “Cap-gap” and am I eligible?

ANSWER: As long as the H-1B petition is filed prior to the expiration of your OPT, you will be eligible for what is referred to as a “Cap-gap” extension, which will extend your OPT to October 1, 2022. You should inform your international student advisor/Designated School Official (DSO) if this situation applies to you as they will need to update your Form I-20 to reflect this “Cap-gap” extension. If you require Cap-gap relief, please notify your ImmiPartner legal team that you will require a copy of the receipt notice so we may forward you a copy that you can present to your DSO. Once a new Form I-20 has been issued please send a copy to your ImmiPartner legal team.

My school says my SEVIS record has been canceled, what should I do?

ANSWER: If your SEVIS record is accidentally canceled, then you should contact your school’s International Student Office and they will need to reinstate your SEVIS record. That cannot be done by your employer or ImmiPartner/Bridge. Please also contact your legal team so they are aware of the situation and can analyze any impact to your underlying status or H-1B petition.

I think I will have the equivalent of a US Bachelor’s degree on April 1, 2022, but will not have graduated from my program. What could I do?

ANSWER: If your school’s registrar’s office will issue a statement that you have fulfilled all of the degree requirements, we can send that statement and your transcripts to our degree evaluation service to determine whether you have the equivalent of a US Bachelor’s degree. Please note it is likely that this evaluation will not be sufficient for permanent residence processing later on, so you should still complete your degree program.

L-1 Intracompany Transferee FAQS

H-1B Status for L-1s

If I change status to H-1B, what happens to my spouse’s L-2 EAD?

ANSWER: If you and your spouse change from L-1 and L-2 to H-1B and H-4 respectively, they will lose their work authorization tied to their L-2 status. In order for your spouse to obtain work authorization again, you will need to progress far along enough through the permanent residence process to obtain an approved I-140. This I-140 will allow us to assist you with filing for an H-4 EAD. The H-4 EAD can take anywhere from 3-8+ months to process. Premium processing may be available in the future but it is not available at this time. Your spouse would not be able to work until they have the H-4 EAD card in hand.

How does my L-1 time interact with the H-1B?

ANSWER: The L-1 visa and the H-1B are unique in that they are both dual-intent visas meaning you are able to maintain your non-immigrant status working in the US without risk of immigrant intent issues while moving through the permanent residence process.

The L-1A is entitled to a maximum of 7 years while the L-1B is entitled to 5. The initial application is able to request up to 3 years and the subsequent extensions are able to request 2 year increments up to the prescribed maximum time allotted. The H-1B shares this “maximum” time with the L-1 visa. This means that if you have used 3 years of L-1 time, you will have a maximum of 3 years of H-1B time to use should you be selected and approved. The main difference here is that, unlike the L-1 which carries with it a definitive “max-out” period in which you will not be able to request additional extensions, the H-1B provides another option to maintain your work authorization going forward. If you are moving through the permanent residence process and either file the PERM or I-140 at least 365 days before the 6-year maximum period ends; OR you hold an approved I-140 and your priority date is not yet current, you may be entitled to additional extensions of your H-1B time in either 1-year or 3-year increments. These options are not possible on an L-1 visa. Please be sure to check in with your ImmiPartner legal team if you are nearing the end of your L-1A/B period and to discuss starting the permanent residence process.

Travel

I am currently in the US in L-1 status, can I travel once my case is approved?

ANSWER: Yes. L-1 visa holders can travel outside the US by relying on a valid L-1 visa once their H-1B petition is approved. If you are filing as a Consular Notification petition, then travel can occur while the case is pending with USCIS. Note that as of October 1, any change of status will be effective and any international travel after that date would require you to visit a US Consulate to obtain the H-1B visa stamp in your passport in order to return to the US in H-1B status (unless visa exempt). You cannot use your L-1 visa after your Change of Status goes into effect, even if it has time remaining on it.

TN Worker FAQS

H-1B Status

What if I am not interested in moving forward with filing an H-1B application this year?

ANSWER: While you are able to continue working under TN status at this time, if you decide in the future to start the permanent residence process, there are travel restrictions that will impact your ability to travel during certain phases of the permanent residence process. We encourage any TN holders to switch to H-1B status. if you are already in or considering starting the green card process. As you may have already been apprised of, if you are in the middle of the permanent residence process while in TN status, you will have issues traveling internationally on a TN visa once an I-140 and/or I-485 application has been filed.. Therefore, the H-1B would provide travel options during the permanent residence process should you be subject to long processing or wait times.

Former J-1 Visa Holders (eg: US Exchange Visitors or Interns)

I am subject to the 2-year foreign residence requirement. What are my options for an H-1B?

ANSWER: If you are subject to the 2-year foreign residence requirement, then you must have either fulfilled the requirement or obtained a waiver of it from USCIS in order to switch into H-1B status in the US.

If your waiver is approved or you have satisfied the 2-year foreign residence requirement prior to filing your H-1B petition, we can file your case as a Change of status matter.

If you are unable to obtain a waiver from USCIS or satisfy the 2-year foreign residence requirement prior to filing, we can file your case as a Consular notification case. You would then have to travel outside the US and obtain an H-1B visa at the Consulate by presenting your waiver approval in order to enter the US in H-1B status. Please note that neither ImmiPartner nor your employer is able to assist in the waiver application process. However, you can reference J-1 Waiver FAQs and additional information at the Department of State’s website.

I do not know if I am subject to the 2-year foreign residence requirement, where can I find this information?

ANSWER: This information can be found on your J-1 visa along the bottom, and also in the bottom left-hand corner of your DS-2019. If this section was not completed, or you are Canadian and therefore do not have a J-1 visa, please contact your J-1 sponsoring agency to confirm.

I have lost my J-1 DS-2019 forms and/or my previous J-1 visa stamp. What can I do?

ANSWER: You will need to contact your J-1 program sponsor to obtain copies. If not, please contact ImmiPartner/Bridge and we will confirm what options are available in order to file the H-1B petition.

E-3 Worker FAQs

H-1B Status

What if I am not interested in moving forward with filing an H-1B application this year?

ANSWER: While you are able to continue working under E-3 status at this time, if you decide in the future to start the permanent residence process, there are travel restrictions that will impact your ability to travel during certain phases of the permanent residence process. As such, we encourage any E-3 holders to H-1B if you are already in or considering starting the green card process. Pursue other visa options that may be available. Additionally, if you were born in a country that has historically experienced longer wait times to file for a green card, we strongly encourage filing an H-1B petition if you plan on becoming a permanent resident. Therefore, the H-1B would provide travel options during the permanent residence process should you be subject to long processing or wait times.

Travel

I am currently in the US in E-3 status, can I travel once my case is approved?

ANSWER: Yes. E-3 visa holders can travel outside the US by relying on a valid E-3 visa after their H-1B petition is approved. If you are filing as a Consular Notification petition, then travel can occur while the case is pending with USCIS. If you are filing as a change of status, you must be present in the US the entire duration your case is pending with USCIS. So long as you are back in the US before October 1, any change of status will be effective and any international travel after that date would require you to visit a US Consulate to obtain the H-1B visa stamp in your passport in order to return to the US in H-1B status (unless visa exempt). You cannot use your E-3 visa after your Change of Status goes into effect, even if it has time remaining on it.

Former J-1 Visa Holders (eg: US Exchange Visitors or Interns)

I am subject to the 2-year foreign residence requirement. What are my options for an H-1B?

ANSWER: If you are subject to the 2-year foreign residence requirement, then you must have either fulfilled the requirement or obtained a waiver of it from USCIS in order to obtain H-1B status in the US.

If your waiver is approved or you have satisfied the 2-year foreign residence requirement prior to filing your H-1B petition, we can file your case as a change of status.

If you are unable to obtain a waiver from USCIS or satisfy the 2-year foreign residence requirement prior to filing, we can file your case as a consular notify. You would then have to travel outside the US and obtain an H-1B visa at the Consulate by presenting your waiver approval in order to enter the US in H-1B status. Please note that neither ImmiPartner nor your employer is able to assist in the waiver application process. However, you can reference J-1 Waiver FAQs and additional information at the Department of State’s website.

I do not know if I am subject to the 2-year foreign residence requirement, where can I find this information?

I have lost my J-1 DS-2019 forms. What can I do?

ANSWER: You will need to contact your program sponsor to see if it is possible to obtain copies. If not, please contact ImmiPartner/Bridge and we will confirm what options are available in order to file the H-1B petition.

O-1 Worker FAQs

I just got an email about the H-1B cap. Since I hold O-1 status, should I still consider H-1B?

ANSWER: Yes, you may still want to consider applying for the H-1B. The H-1B visa offers some additional benefits that the O-1 does not. Perhaps most importantly, the H-1B is a dual intent visa meaning when you begin the green card process, there will not be any heightened travel risks unlike the O-1. The H-1B also allows for renewals in 3 year increments as opposed to 1 year renewals with the O-1s which will lead to extending every 6 months, and also means you will have to continue doing research, publishing, and participating in peer review to maintain your expertise and eligibility for the visa. Finally, if you are a principal H-1B holder with an approved I-140, your H-4 dependent spouse will have work authorization, unlike an O-3 dependent.

Would this contradict my current process of filing for my O-1 in the meantime?

The general answer is no. However, please be sure to check with your O-1 legal team on the strategy and timing of filing your O-1 petition.

I am a bit worried about having two processes in parallel (O-1, H-1B). Is that common? Would USCIS view that negatively?

ANSWER: Yes, this is common and no, it will not be viewed negatively. Both processes are independent of each other and will be adjudicated as such. Again, please check with your team on strategy and timing of filing of your O-1 petition.

How will filing an H-1B affect my dependents who are currently in O-3 status?

ANSWER: If your case is filed as change of status, your family member would change status automatically on October 1, 2022 with you if your petition is approved. However, if your case is filed as a Notify to the Consulate and approved, your family member would need to travel with you when you plan to activate your H-1B. Your family member would have to wait until you activate your H-1B to be able to apply for the H-4 visa. We recommend applying for the initial H-1B visa in your home country as opposed to applying in a third-party country.

Travel

I am currently in the US in O-1 status, can I travel once my case is approved?

ANSWER: Yes. O-1 visa holders can travel outside the US by relying on a valid O-1 visa after their H-1B petition is approved. If you are filing as a Consular Notification petition, then travel can occur while the case is pending with USCIS. If you are filing as a change of status, you must be present in the US the entire duration your case is pending with USCIS. So long as you are back in the US before October 1, any change of status will be effective and any international travel after that date would require you to visit a US Consulate to obtain the H-1B visa stamp in your passport in order to return to the US in H-1B status (unless visa exempt). You cannot use your O-1 visa after your Change of Status goes into effect, even if it has time remaining on it.

J-1 FAQs

J-1 Visa Holders (e.g.: US Exchange Visitors or Interns)

I am subject to the 2-year foreign residence requirement. What are my options for an H-1B?

If your waiver is approved or you have satisfied the 2-year foreign residence requirement prior to filing your H-1B petition, we can file your case as a Change of status matter.

I do not know if I am subject to the 2-year foreign residence requirement, where can I find this information?

I have lost my J-1 DS-2019 forms and/or J-1 visa stamps. What can I do?

ANSWER: You will need to contact your J-1 program sponsor to see if it is possible to obtain copies. If not, please contact ImmiPartner/Bridge and we will confirm what options are available in order to file the H-1B petition.

Basics Series, Corporate Immigration, Blog Post, F1 Students, H1B, H1B Visa, L1, L1 Visa, O1 VisaTing NiJanuary 3, 2022basics, H-1B, H-1B Cap, FAQs