Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for February, 2015

Notes from USCIS Conference Call on H-4 Spouse EAD; Recording Available for Download

Our office just completed participation in the very-busy USCIS conference call to discuss and answer questions about the upcoming H-4 Spouse EAD rule.   We are happy to share our immediate notes and reactions from the call to our readers.   We also have upcoming engagement options for our attorneys to provide more information and answer further questions about the process.

Our Notes from the H-4 Spouse EAD Conference Call

I-140 Petition from Former Employer.   One of the biggest questions about the H-4 Spouse EAD rule was answered – according to the panelists from USCIS, an approved I-140, even from a former employer, would permit an H-4 Spouse EAD when the H-1B spouse has started working for a new employer and the new employer has not obtained an approval of the new I-140.     This is great news and was one of the biggest unanswered questions about the rule.

However, the panelists specifically indicated that a withdrawn I-140 petition by the former employer means that there is no longer “approved I-140” and, as a result, there is no longer H-4 Spouse EAD eligibility.

Concurrent I-539 and -765 Applications Allowed.   H-4 Spouse EAD applications (on Form I-765) can be filed concurrently with I-539 and even I-129 petitions, when the circumstances permit.    It is expected that in many cases both the I-539 and the I-765 applications will be adjudicated at the same time.

H-4 EAD Validity.   The term of H-4 Spouse EAD card validity is expected to be the same as the underlying H-4 status.   The EAD will be valid from the date of approval until the H-4 status expiration date.    But a valid EAD is required at all times to work – so proper planning for the extensions of status and EAD is key.    The H-4 Spouse EAD will be valid for employment with any employer and there is no requirement that an H-4 Spouse EAD holder be employer at all times.

EAD Is Not a Travel Document.   The EAD itself would not permit travel to the U.S.  An H-4 spouse who has an EAD will need an H-4 visa stamp in order to travel back to the U.S.   The EAD only allows employment during its validity period.

Mechanics of the Application Process.   New Form I-765 with instructions will be released over the next days or few weeks.  The application will be filed on paper (no electronic filing, at least for now) and must include full documentation of eligibility.   In cases where certain documents are not available, providing as much relevant information as possible is key in order to allow USCIS to look up information about a case.   The application does not anticipate (for now) having to do biometrics – instead, the application will request submission of photos.

Unanswered Questions.   There were a few questions about some fairly complex situations which USCIS took under advisement and we should expect more information in future USCIS communications about the H-4 Spouse EAD rule.    Our office will certainly provide more information about once we have any news.

Opportunities to Learn More and Discuss With Our Attorneys

To accommodate the great demand of clarification and create a public forum for this, our attorneys will be conducting series of Q&A events focuses solely on the H-4 Spouse EAD rule, as follows:

  • Online Chat – Thursday, February 26, 2015 at 3:00 PM EST – free online chat session with Capitol Immigration Law Group attorneys to discuss the H-4 Spouse EAD rule and answer questions about the rule.    Attend the live chat session.
  • Webinar – Tuesday, March 3, 2015 at 1:00 PM EST – free webinar with a more detailed and formal presentation and discussion of the rule, its criteria, mechanics, requirements and challenges.   Register for the free webinar (space is limited).

USCIS H-4 Conference Call Recording

For those who were not able to attend the call but wish to hear a recording, please follow this link.


We will continue to provide information on this rule as it becomes available.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

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H-4 Spouse EAD Rule – Online Chat and Webinar Q&A Opportunities

Since the H-4 Spouse EAD rule announcement yesterday, our office has been receiving a number of questions and inquiries about the rule.  the rule.  For example, many people are interested to know whether the approved I-140 petition, which is one of the eligibility factors, must be from a current employer or it can be from a former employer.    Our office has been analyzing the full rule text and comments and we have been utilizing our resources to gather more information about this and other questions regarding the rule.

To accommodate the great demand of clarification and create a public forum for this, our attorneys will be conducting series of Q&A events focuses solely on the H-4 Spouse EAD rule, as follows:

  • Online Chat – Thursday, February 26, 2015 at 3:00 PM EST – free online chat session with Capitol Immigration Law Group attorneys to discuss the H-4 Spouse EAD rule and answer questions about the rule.    See the archived chat transcript.
  • Webinar – Tuesday, March 3, 2015 at 1:00 PM EST – free webinar with a more detailed and formal presentation and discussion of the rule, its criteria, mechanics, requirements and challenges.   See the archived webinar.

In the meantime, our office will continue to post articles on our website and newsletter on this and related topics.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Final H-4 Spouse EAD Rule Announced – Becomes Effective May 26, 2015

After months of waiting and anticipation, USCIS has finally announced that effective May 26, 2015, USCIS will begin accepting applications for I-765 Employment Authorization Document (EAD) applications by certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

Who is Eligible to Apply for EAD?

H-4 spouses who are eligible for the EAD under this rule are:

  • spouses of H–1B workers if the H-1B worker is a beneficiary of an approved Immigrant Petition for Alien Worker (Form I–140);  or
  • spouses of H–1B workers if the H-1B worker has been granted an extension of their authorized period of admission in the United States under the section 106(a) and (b) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21).    Section 106(a) and 106(b) of AC21 allow H-1B status extension of the H-1B worker is the beneficiary of a PERM Labor Certification or an I-140 petition which has been pending for more than 365 days.

It should be noted that the rule explicitly states that H-4 dependent children will not be eligible for EAD under this rule.

Mechanics of the H-4 Spouse EAD Application Process

The rule would add eligible H-4 spouses to the list of nonimmigrants eligible to apply for an employment authorization document (EAD).    The application will be filed using the current Form I-765, together with filing fees ($380 as of the date of this article), photos and supporting documents to establish eligibility for this new class of EAD.

Earliest Filing Date.   The earliest date USCIS will accept EAD applications pursuant to this rule is May 26, 2015.    Applications filed before this date will be rejected.       However, applications can be prepared in advance and our office will be happy to do so for a timely filing as soon as the filing window opens on May 26, 2015.

EAD Validity and Extensions.   As with most other EAD classes, employment would be authorized only after the EAD has been approved and only during the validity of the approved EAD document.    The  rule mentions that USCIS is considering that such EADs will be issued with validity of up to two years, recognizing that even if USCIS were to issue a longer EAD validity period, it cannot exceed the applicant H-4 spouse’s H-4 status validity period.      Extensions can be filed up to 120 days in advance of expiration of the current EAD term (and assuming continuing H-4 status and extension eligibility) and EAD extensions can be (and perhaps should be) filed together with H-4 status extensions.

Concurrent H-4 Status and H-4 EAD Applications Permitted.    The rule allows specifically for the concurrent filing of I-539 applications seeking to either change to H-4 status or to extend H-4 status together with the I-765 EAD application.   This is great news because it allows for the concurrent processing of an H-4 status with a work permit application.    Without the concurrent filing option, an H-4 applicant would have to wait for the H-4 status to be approved, and then file a separate EAD application and wait for another 2-3 months for the actual work authorization.     In cases where this is possible, we encourage concurrent filing of the I-539 H-4 status application and the I-765 EAD applications.

Documentation of Eligibility.   Since EADs under this rule would be issued only to a limited set of H-4 spouses, the EAD application would require enhanced documentation to show eligibility.    In addition to the application form, fee and required passport photos, the EAD application would seek evidence that the H-1B nonimmigrant spouse is beneficiary of an approved I-140 petition or has PERM Labor Certification or I-140 petition filed more than 365 days prior; in addition to evidence of the applicant’s H-4 status validity and duration.

Full Text of the Rule

For those of our clients and readers who want to dig into the rule, it can be accessed online.

More Information and Opportunity to Ask Questions

Our office will be holding a free webinar on this rule, its requirements and challenges.   The webinar is scheduled for Tuesday, March 3rd at 1 pm eastern time.   Please register early to claim your spot – registration and attendance are free but space is limited.

H-4 Spouse EAD Attorney Service Filing Quote

Our office has been monitoring closely this rule since it was announced in May 2014 and we are ready to start accepting applications for filing on or after May 26, 2015.     If you would like one of our attorneys to review your case and provide a free and no-obligation quote for our services, please complete this brief request H-4 Spouse EAD attorney quote form.


We welcome DHS’s publication of the new H-4 spouse EAD rule and we believe that many eligible H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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How to File an H-1B Cap Petition When the Current Degree is Still in Progress?

DiplomaAs the H-1B cap filing season is well underway and as the filing day of April 1st is approaching fast, a common question by H-1B employers or H-1B candidates is whether an H-1B cap petition can (or should) be filed when the foreign national employee is still completing their degree program and when the degree will not be completed by April 1st.   The short answer is that while the H-1B regulations require a degree be completed in order to be used for H-1B filing, there are ways to use previous or partially-completed degree to qualify for the H-1B cap.   This option becomes increasingly important as we are facing a situation where, due to high demand, many H-1B candidates will not be selected under the H-1B cap lottery and being able to file a few times, over two or three H-1B cap seasons, becomes a critical advantage.

Background:  Supporting H-1B Employee’s Degree Must be Completed by April 1st

The general rule with respect to using educational degrees for H-1B cap filings is that a degree must be completed before April 1st in order for this degree to be usable to qualify its holder for H-1B work visa filing under the H-1B cap.   USCIS has clarified that they would accept degrees as completed when all of the courses and degree requirements have been completed by April 1st and that the only outstanding item remaining is the actual graduation ceremony (which is usually later in the spring, most often in May).

While it is possible that some degree requirements can be completed by April 1st (in which case the degree can be used to qualify for the H-1B cap), most often a degree is not completed by April 1st.  In this kind of situations, the foreign national (and their employer) does not normally consider the possibility of an H-1B cap filing.  However, there are ways in which this can be done, thereby increasing the attempts an H-1B cap petition can be filed, selected under the cap and ultimately approved.

H-1B Cap Filing Based on Prior or Partially-Completed Education

Even when the degree is not completed by April 1st, all is not lost.    An H-1B petition normally requires that the position require a bachelor’s degree or higher and that the foreign worker have such a degree.   So, if a master’s degree student is working on completing their master’s degree but the degree requirements are not completed by April 1st, and assuming the undergraduate degree is related to the offered position, the H-1B employer can still file a cap H-1B petition on behalf of the foreign national.   Yes, the H-1B cap will have to be under the general (65,000 visas) cap as opposed to the master’s (additional 20,000 visas) cap; but it still allows a filing and an extra shot at the cap lottery.

Additionally, USCIS accepts work experience in lieu of missing education.  Three years of relevant experience can be used to supplement each missing year of education.  So if an foreign worker has three years of completed education but at least three years of related work experience, it may be possible to make an equivalency argument for a bachelor’s degree.   This may even allow a foreign student who is pursuing their bachelor’s degree in the U.S. and who has at least three years of relevant experience to make a case for H-1B cap filing on April 1st.


With the high anticipated demand during the H-1B cap season and the anticipated lottery, it becomes increasingly important for H-1B employers and their H-1B visa candidates to take advantage of any available opportunity to increase their chances to ultimately get selected under the H-1B cap.  Being able to file under more than once, in two or three, H-1B cap lottery iterations becomes one of the key (and sometimes overlooked) ways to boost one’s chances.

We are hopeful that this article would allow at least some H-1B employers and workers to evaluate the opportunity of filing for H-1B under this year’s cap even if the degree is still in progress and will not be completed by April 1st.    Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Current PERM Processing Times (February 6, 2015)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of February 6 2015.

Current PERM Processing Times

This month does not bring much change in the PERM processing times – regular PERM cases still take around five months.     The processing time of PERM applications in audit increases by one month compared to our prior monthly report.

The processing times, as reported by DOL, are as follows:

  • Regular processing: September 2014.  DOL is processing PERM applications with priority dates of September  2014.  There is no change in the expected duration of a PERM case compared to the January 2015 report.    Accordingly, regular PERM processing times should be around five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    The PERM processing times have remained steady at five months — we hope that DOL will be able to decrease their regular PERM processing times over the next months.
  • Audited applications: June 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of June 2013.  There is a delay of one additional month in the expected PERM audit review time compared to last month’s report.    Accordingly, audited PERM applications are processed approximately 20-21 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): February 2015.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in February 2015.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.


The February 2015 PERM processing times report shows that the PERM processing times remain largely unchanged over the last couple of months.  We had noticed gradual decrease in the PERM processing times earlier in the year; however, the last one or two monthly reports suggest that the processing times remain steady.      We are hopeful that the trend of improvement in the processing times would continue in the next months.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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March 2015 Visa Bulletin – EB-2 India Advances Significantly by Sixteen Months; EB-3 Advances But More Slowly

The U.S. State Department has just released the March 2015 Visa Bulletin which is the sixth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant (16-week) forward movement in EB-2 India and the continued forward movement in the EB-3 preference category (even though some slowdown is noticeable).

Summary of the March 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the March 2015 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India moves forward significantly by sixteen (16) months to January 1, 2007.  EB-2 China moves forward by four and a half (4.5) months to September 1, 2010.
  • EB-3 ROW, Mexico and Philippines advance by five (5) months to June 1, 2014.   EB-3 China advances by seven (7) weeks to October 22, 2011 while EB-3 India  advances by only one (1) week to January 1, 2004.
  • The “other worker” categories for ROW, Mexico and Philippines advance by five (5) months to June 1, 2014.   EB-3 China remains unchanged at August 15, 2005 while EB-3 India  advances by one (1) week to January 1, 2004.

Summary of the March 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the March 2015 Visa Bulletin with respect to some family-based categories:

  • FB-1 ROW, China and India all move forward by only one (1) week to August 1, 2007.   FB-1 Mexico moves forward by three (3) weeks to October 22, 1994 and FB-1 Philippines moves forward by three (3) weeks to February 1, 2005.
  • FB-2A moves forward again  – it moves forward by six (6) weeks to June 22, 2013 for ROW, China, India and Philippines.  It also moves forward by one (1) month to May 22, 2013  for Mexico.

Another EB-2 India Significant Forward Movement

Most people who follow closely the movements in the Visa Bulletin with respect to EB-2 India were surprised last month when the Department of State announced that EB-2 India would move forward by four to six months per month over the next several months.   This month’s Visa Bulletin brings another (good for EB-2 India) surprise – the forward movement this month is of sixteen months, to January 1, 2007.    EB-2 India applicants with a priority date earlier than January 1, 2007 can now move forward (or expect news, hopefully approval) with their applications.

We continue to anticipate significant forward cutoff date movements for the next few  months – by four to six months per Visa Bulletin.

EB-3 Continues to Move Forward Significantly

Another notable and important development in the March 2015 Visa Bulletin is the continued notable forward movement in the EB-3 categories.    Most of the EB-3 categories have advanced by five months, with EB-3 China moving forward by only seven weeks.     This should be welcome news to many EB-3 applicants (except EB-3 India where the forward movement is only of one week) who may be eligible for I-485 filings or processing of their immigrant visas at the U.S. Consulates abroad.    We are happy to provide a free quote for preparing and filing your I-485 application to those EB-2 India and EB-3 applicants (and other) who are seeing an advancing and current (or soon to be current) priority date.

While it appears that the rate of forward movement in EB-3 is decreasing, it should be noted that these categories have been advancing rapidly over the last few months and some slowdown should be expected.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the March 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the March 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Client Success Story: How Premium Processing of an H-1B Petition Helped Us Reverse USCIS Error and Save Our Client Time and Money

One of the main areas of expertise of our firm is handling H-1B petitions for a number of organizations around the United States.   Our readers are aware that the H-1B petition allows the election of a premium processing service which, for an additional government filing fee of $1,225.00, guarantees that the government will provide a response on the petition within 15 calendar days.     Often we are asked by our clients t advise whether premium processing must be chosen or the regular process (which can vary between 2-5  months) is sufficient.

In many cases this determination is easy – premium processing must be used when there is a requirement for fast employment start, especially in change of status cases.   In other cases, however, the decision to use premium processing is not so easy.    We would like to share one of our recent client success stories to highlight some of the additional benefits of using premium processing.

The Client Situation

Our office was contacted by an individual and their employer after they had filed the H-1B petition internally.   The employer sought to petition for H-1B transfer and to extend the beneficiary’s current H-1B status.    Due to a number of reasons, the employer had filed the H-1B transfer petition a few days after the optimal filing time and, as a result, USCIS had issued a request for evidence seeking evidence that the beneficiary had maintained valid status as of the time of filing of the H-1B petition.     Our office was engaged to respond to the RFE and complete the case in the best possible way.

Upgrading to Premium Processing Together with the RFE Response

We worked with the client to prepare the best possible RFE response and we worked to draft a number of legal arguments providing a justification of the delay and asking for USCIS discretion in excusing the late H-1B petition filing by the client.   At the same time, we upgraded the H-1B petition from regular to premium processing.    The rationale for this premium processing upgrade was partially to force the decision faster so that the client can seek alternatives in case the USCIS response was negative.

At the same time, by upgrading to premium processing, as attorneys, we gained a few additional and often overlooked benefits of the premium processing service.    First, we are given a direct access to the USCIS service center, including a direct email and phone contact with immigration officers at the service center.   This kind of access is essential when working with USCIS to address any issues or concerns relating to a case promptly and efficiently.

By way of comparison, USCIS provides a customer service phone line to all regular processing cases but handling case issues, especially complex ones,  through the regular customer service avenue is often very slow and sometimes, especially for more complex situations, even impossible.

Initial USCIS Decision:   Both Petition and Extension of Status Requests Denied

In response to our premium processing upgrade and RFE response, USCIS provided a prompt decision but not the decision our client hoped for.   USCIS determined that because the beneficiary had not maintained valid status at the time the H-1B petition has been filed, they are denying both the H-1B classification petition and the extension of status request.

At that time, our attorneys immediately spotted a USCIS error.   In cases where the beneficiary is not proven to be in valid status at the time of filing of an H-1B petition, USCIS has the option of denying the status component of the H-1B petition.  However, if there are no other outstanding issues regarding the H-1B petition, USCIS should approve the H-1B classification component of the petition.

As a result, our office realized that USCIS should have approved the H-1B petition, with consular notification option, even though the status component of the petition was denied.   We sought to correct this situation for our client.

Case Problem and Error Resolution for Premium Processing Cases

Normally, when USCIS denies an application, the normal route is to file for an I-290B motion to reopen/reconsider or even appeal at the Administrative Appeals Office.   This application must normally be filed within 30 days of the denial decision date, often with a fee, and often has a processing timeline of 4-6 or more months.    This kind of case denial resolution option is often inadequate, especially for H-1B petitions, because of the significant period of uncertainty.    Many employers decide to refile their H-1B petition with a new set of fees even when they feel that the denial is reversible on appeal.

Understanding the challenges of a new refiled petition in terms of time and cost for our client, we sought to convince the service center that they have made a wrong decision.    Immediately upon receipt of the denial notice, our office reached out to the service center’s premium processing unit responsible for the case and we explained in detail the legal reasons as to why their decision to deny the H-1B classification portion of the petition was wrong.     We explained that under relevant guidance a finding that the beneficiary had not maintained valid status at the time of filing should not cause the classification portion of the H-1B petition to be denied.   Instead, in this kind of cases, the H-1B petition should still be approved, albeit with consular processing.

Several days later our office received notification from the service center that a supervisor had reviewed our arguments in the case and had issues a corrected decision — to approve the H-1B petition with consular processing.   As a result, we were able to achieve complete and favorable case resolution for the full benefit of our client within a few days and without any additional cost to our client (this kind of service is normally included in our H-1B petition flat fee arrangement).   We were able to save time and money to our client by not having to use the I-290B motion/appeal case resolution avenue.

Is Premium Processing Worth It In All Situations?

The moral of this story is not to imply that premium processing should be used in all situations – in fact, there are cases where premium processing may impact an H-1B filing strategy negatively.    The moral of the story is that premium processing service should be considered not only when a fast decision is required but also where the case may have complexities or issues.

Certainly we suggest all H-1B petitioners to discuss the pros and cons of premium processing with their attorneys before filing to understand and confirm that a premium vs. regular processing filing option is the best for that particular case.


We hope that this client success story is helpful to our clients and readers to understand the alternative ways to resolve a case where premium processing has been used.    Our hope is that case difficulties would not happen in the first place, but if or when they do, using premium processing service may allow for one extra layer of case resolution options.

Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements

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The OPT Cap-Gap Rule: Extension of Post-Completion OPT and F-1 Status for Eligible Students Applying for Cap H-1B

Spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned.  On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas under the H-1B cap.

Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options.   In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.

Background on the H-1B Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the current fiscal year starting on October 1st.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

What Is “Cap-Gap”?

The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the F-1 work permit (OPT) and beginning of the H-1B status on October 1st that might otherwise occur if F-1 status was not extended for qualifying students.   For example, a student whose OPT is set to expire on July 15th will have a “gap” between this date and October 1st when a new H-1B cap petition would begin (once approved).

How to Invoke the “Cap-Gap”?

Most importantly, an H-1B cap petition must be timely filed on behalf of an eligible F-1 student.  This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B cap acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected under the H-1B cap lottery and approved, the student’s F-1 OPT will be considered extended and will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected under the H-1B lottery or not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Is Proof of Cap-Gap Status Necessary?

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue an interim cap-gap I-20 showing an extension until October 1st.  Students whose approved period of OPT already extends beyond October 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record.

Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.

Can Students Travel While Under Cap-Gap Extension?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence.  However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired.  Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans accordingly.


The OPT cap-gap provisions for F-1 international students can be complex and may apply in different ways in different situations.    Additionally, the cap-gap rule only applies if there is a timely-filed H-1B petition under the H-1B cap.    While we do not yet know how quickly this year’s H-1B cap would be reached, indications of the heavy interest early this year and last year’s historical data suggest for a very short (5-day) H-1B cap filing window.    In fact, we urge our clients and readers to assume that the H-1B cap season will last only five days and to aim for April 1, 2015 H-1B petition filing.

If you wish to start a new H-1B work visa petition under this year’s quota, if you have any questions or concerns about the OPT cap-gap rule or if our office can be of any help, please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application, together with helping you navigate through the OPT cap-gap rules and situations.

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