When Should I apply for H1B Visa

An employer can file for your petition such that it has to be received with all supporting documents at the USCIS application center, along with the basic H-1B processing fee (plus the fee for the premium processing, if you choose to go that route), on or after the 1st of April of the year you […]

An employer can file for your petition such that it has to be received with all supporting documents at the USCIS application center, along with the basic H-1B processing fee (plus the fee for the premium processing, if you choose to go that route), on or after the 1st of April of the year you want your H-1B to start. Meaning, if you’re applying to get your work authorization i.e. H-1B petition approved start Oct. 1st 2015, your employer will have to send in the documents such that they reach the processing center on or after 1st April 2015. Documents sent in before that date, which are received by the processing center or or before 31st March, will not be accepted for processing, and the petitioner (your employer) will have to resend all documents along with the payments, for the processing to start.

But, keep in mind, that your document reaching there on 1st April, or for that matter, any date, does not guarantee that it will be approved, or even processed in the first place. The applications are taken in for processing on a first-come-first-served basis, in the order they were received by the processing center, until the quota(s) are exhausted. Meaning, if you have a graduate degree, and your employer has petitioned for your H-1B to be applied under the 20k quota for people with US advanced degrees, and if that quota is exhausted by the time your app gets in for processing, your app will automatically be considered for the regular 65k quota. If your employer has filed for your H-1B in the 65k quota to begin with or if you’re rolling over to the regular 65k quota from the 20k Masters+PhD quota, and if that quota has been filled up too, then your H-1B petition will automatically be rejected. Yes, just because it didn’t get there in time, or if in the case the USCIS uses a lottery-based system (as is the case this year, in 2013), and your petition isn’t picked up by the lottery. This year, the USCIS announced on 5th April that it had exhausted both the 20k and the 65k quotas, i.e. in 5 short days. But, the USCIS does not and cannot update for each petition the processing center gets, and it cannot update once a day either, so they just announce whenever the number of applications received crosses the quota threshold. Meaning, if by the end of the work timings on the 4th of April, either of the quotas was yet to fill up, they would still have accepted applications that came in on the 5th of April, but if they counted and found out at the end of business on the 5th that they had crossed the 85k (65k regular + 20k MS/PhD) number, they closed this year’s quotas. But, in all likelihood, on the 5th of April itself, while the number of applications was more than 85k (more than 65k regular quota eligible petitions and more than 20k MS/PhD quota eligible petitions), the actual received number would’ve been much higher. Now, assume, that at the end of business on the 5th of April, they USCIS did a tally and found out that they got a total of 30k MS/PhD petitions, and 80k regular petitions, then what are they to do? Congress mandates the total number of H-1B visas issued in every year to be 65k+20k, but here there are 30k+80k, i.e. 110k. So how to choose which 20k petitions from among the 30k MS/PhD petitions received and which 65k petitions from the 80k regular petitions received, would be approved?

That, is where the concept of a “lottery” comes into play. Now, a lottery system (a randomizer, of sorts), would be used to pick out 20k petitions for the MS/PhD quota from the MS/PhD pool, and a separate 65k other petitions from the regular pool (which might include the rest of the MS/PhD petitions which were not considered in the 20k pool, but which automatically got rolled-over to the regular 65k pool because the MS/PhD quota got filled up – which almost always happens before the regular quota is filled up). If your petition is picked up by the lottery, then the processing begins. That still doesn’t mean your H-1B petition is actually approved. Here, a USCIS officer adjudicates over your petition and decides whether to approve it or reject it based on the documents you have provided. If any of your documentation is incomplete, the USCIS will send you an “RFE” (Request for evidence), which means you (or rather, your employer) is being given a chance to issue further clarifications or justifications or supporting evidence, so as to be able to make a better judgement on your case, whether it should be approved or not. An RFE means the USCIS is waiting for your employer to send in supporting evidence, and your employer has until a certain timeframe to do so (I don’t know what that is, precisely), but until the end of that evidence window, you won’t lose your place in the queue. But, if your employer sends in incorrect evidence, or the sent documentation is unsatisfactory (which happens sometimes too, if the attorneys aren’t experts in immigration cases, or your employer botches it up for whatever reason), or if your employer/attorney sends the documents after the amount of time given to respond, then your H-1B petition is declined. And since, at that point, the quota has been exhausted, you have no other resort but to go through the whole process from scratch and apply for the next year, starting April 1st.

One important point about the lottery: The lottery algorithm doesn’t see the 85k quota as a whole slab, but it sees the overall 85k figure as 2 chunks, one for the 65k regular quota and another one for the separate MS/PhD 20k quota. Meaning, a separate lottery is run on the 65k quota and this is different from the one run on the 20k MS/PhD quota. That means, if your application is accepted for processing in the 20k quota, your petition will only be competing against the other MS/PhD quota-eligible petitions, for one place among the 20k. Ditto for the 65k, but here the competition is actually more, because you’d not only be up against the regular applicants, but also the roll-overs whose petitions couldn’t be accepted since the MS/PhD 20k quota got filled up, and were accepted for the 65k quota lottery. Not that it matters to you at this stage anyhow, but it can make for an interesting statistical observation.

2. If they miss this specific month for application (in case one exists), what are the scenarios and consequences?

I am assuming “this month” means April. As I said above, it doesn’t matter to the USCIS when you send the petition and all documents+fees, but when they receive it. If your petition is received after both quotas are filled up, your petition is automatically declined, and you have to apply in the next year. If that happens, in no way does a rejected H-1B petition affect or impact of your current status in the US. Meaning, if you’re in the US on OPT, your OPT continues unabated. The problem is when you are on your OPT, but it is set to expire before the next April. Example: you graduate in Dec. 2014, and your OPT begins in say Feb. 2015. Now, assuming you get a job in the same month, say Feb. 2015, then you have 12 months of OPT (not counting the STEM extension, which MBA students and non-STEM majors do not get), i.e. your OPT ends in Feb. 2016. Now, you better have an employer who is ready to (1) sponsor your STEM extension, if that’s an option, starting Feb 2016, else you’re out of status in Feb. 2016, or (2) if you’re ineligible to get a STEM extension because of your program major, you must have an employer ready to sponsor you immediately after you join, in Feb. 2015. If you only have a 12-month OPT, then you won’t be able to wait until the 2016 H-1B processing intake that begins on 1st April 2016, because your OPT would’ve ended in Feb. 2016 and you’d be out of legal status in the interim.

So what happens then? There can be 2 possible scenarios:

1) You have a STEM extension:

In this case, you have some breathing space. You don’t need to immediately find an employer willing to sponsor your H-1B as soon as your OPT starts, because you have a further 17 months under the extension, starting from Feb. 2016 (i.e. till July 2017). So, you have a total of 3 attempts to find an employer who is ready to sponsor you, and get your petition in: 1st April 2015, 1st April 2016 and 1st April 2017. If you find such an employer and if your petition is approved, well and good. If your petition goes in for the 1st Oct 2015 H-1B start date (i.e. on or after April 1st 2015, until both quotas run out), or for the 1st Oct. 2016 H-1B starting period (i.e. on or after 1st April 2016, until both the 65k and 20k quotas run out), and even if your petition is rejected, no issues, because you still have 2017 to try for. But, if your petition is rejected for the 2017 start date (i.e. petition that reaches USCIS on or after 1st April 2017), then you’re out of luck, because your OPT extension expires in July 2017 and you cannot stay in the US any longer. Then if you want an H-1B, you’ll have to return to your home country and try for the 1st Oct. 2018 start period from there, making sure your app is received at the USCIS application processing center on or after 1st April 2018.

2) If you do not have a STEM extension:

You basically have just ONE shot to get your H-1B approved. Meaning, if you graduate in Dec. 2014 and if your OPT starts anytime before 1st April 2015, then you have to make sure to have an employer ready to sponsor you as soon as the quotas open on 1st April 2015, else, if your petition is rejected for whatever reason, you will have to exit the US after your OPT ends (which will be before 1st April 2016). If you graduate at the end of the Spring semester or Spring quarter in some schools, meaning in say May or June 2015, then your one year of OPT will go through until 12 months from the start date of your OPT, meaning sometime between May and Sep. 2016. But, still you have only ONE shot to get an H-1B petition in, i.e. in 2016. Even though you are in the US in April 2015, you cannot find an employer to sponsor you for the 2015 period starting on 1st Oct. 2015, or even if you have any such employer who is ready, the employer cannot apply for an H-1B petition on your behalf, because you won’t be graduating until later, say May or June or July 2015. Again, even for Spring graduates from non-STEM programs, same deal applies as for the non-STEM Fall graduates: either get an employer who’s ready to file for your H-1B in the one shot you have at it, or else go back to your home country.

If my OPT starts on the 20th of April 2015, and the H1-B application can be filed only during the next year, that is on or after the 1st of April 2016, the non-STEM OPT ends on 20th April 2016. If so,
1. Does it end up with an RFE and what other complications occur?

The main disadvantage of getting a Request For Evidence (RFE), is that until the RFE is cleared and your H-1B petition is approved by the USCIS, you cannot work in the United States, period. That means, if you’re on OPT and you get an RFE at any time before 1st Oct, no issues, because you won’t be transitioning to H-1B status before 1st Oct. anyway, and you have that much time to hope to get the RFE cleared. If you do not get your H-1B petition approved by 1st Oct., you’re basically in a limbo – allowed to be in the US because the adjudication of your H-1B petition is underway, but it hasn’t been as yet approved. If you get an H-1B denial after the adjudication of your case, or a denial after an RFE, both of which happens after 1st Oct., and if your OPT has expired, then you have to leave the US as you are not in status any longer. If you get an RFE after 1st Oct., you are allowed to stay in the US, but not start working, until (1) your employer sends in the documents needed to support your H-1B petition to clear the RFE, (2) you get the RFE cleared and a decision is issued in your case. If you get an approval, congratulations, you can start working on the very next day after your employer gets the approval notice from USCIS, if that happens after Oct. 1st. If you are denied, you have to pack your bags and go back to your home country.

2.Provided no other complications arise, when can the visa be obtained? Is working post April 20th permitted till the H1-B is obtained?

1) As I said above, your OPT is not going to start that late.

2) The H-1B petition filing period starts on the 1st of April each year, but all petition, irrespective of whether the beneficiary of the petition (i.e. you) is inside the US or not, has a graduate degree or not, all approved H-1B petitions start on Oct. 1st, and Oct. 1st only. That means, irrespective of whether the quotas get filled up on the 1st of April, the 15th of April or in May or whenever, you will transition to H-1B status only beginning the 1st of Oct. In the interim period, your earlier visa status will continue unabated. For example, if you were on OPT when your employer had filed an H-1B petition for you, then you will continue to be on OPT until 30th Sep., and on Oct. 1st, you will have to fill out a new I-9 Employment Verification form and re-submit your visa, I-20, I-94 and H-1B approval notice document photocopies to your employer, that signifies your transition of status into H-1B. If you do not exit the US in the interim, that is pretty much all you need to do.

What is “cap-gap”?

1) Assume that you graduate on 15th Dec. 2014.

2) That means, you have until 15th Mar. 2015, to begin your OPT, meaning the start date of your post-completion OPT should fall between 15th Dec. 2014 and 15th Mar. 2015.

3) Assume you start your post-comp OPT on the 1st of March, 2015. That means, your regular OPT will last until 29th Feb. 2016 (or until 28th Feb, if the next year isn’t a leap year). If your program is eligible for a STEM extension of 17 more months, the extension would start on the 1st of Mar, 2016 (there can be no gaps between the regular 12-month OPT and the STEM extension, else you are considered to be out-of-status and subject to immediate deportation from the US), and that extension would go on until the 1st of August 2017.

4) Now, suppose your employer files for an H-1B petition on your behalf in 2017 (i.e. on or after the 1st of April 2017), and if your petition is approved, then it will begin on the 1st of Oct. 2017.

5) But, your OPT ends on the 1st of August 2017, and your H-1B status begins on the 1st of Oct. 2017. So what happens in the interim? Technically, there should be no gaps between any of your immigration statuses in the US, meaning there should be no gap, no even of one day, between your OPT (or OPT extension, as the case might be), and the start of your H-1B, else again you’re subject to deportation from the US. So, to avoid this scenario, where you’d have gone out-of-status for the interim period (in this case, 1st Aug. 2017 to 1st Oct. 2017), the USCIS had introduced the “cap-gap” clause back in 2008.

6) For the exact wording of the clause and it’s ramifications, please refer to the USCIS website, but I will try to summarize it here for you. “Cap-gap” refers to the immigration status that a person is in, when his/her OPT (or OPT extension period, as the case might be) has expired, but when the person has an approved H-1B petition in hand, set to begin on the 1st of Oct. of the same year. That “cap-gap” allows you to work with your present employer, as a logical extension of your OPT (or the STEM extension), without some of the benefits of your OPT (or OPT STEM extension). What benefits are those? The biggest advantage of your OPT/OPT extension, is that with an approved OPT or an in-process OPT extension, you can exit the US, say to go to your home country. But, if you’re in the “cap-gap” period, if you exit the US, to go to any other country, be it your home country, or even Canada or Mexico, you are considered to be ineligible to re-enter the US. Meaning, the “cap-gap” status only allows you to stay in the US legally and is valid only until you’re in the US. The minute you step outside the US, you are considered not to be in valid OPT status any more (since your OPT period or your OPT extension has expired), and you’re not even on H-1B status (since your H-1B validity period starts on the 1st of Oct.). In such cases, if you do exit the US, you will have to wait until your H-1B period starts, i.e. the 1st of Oct., to reapply for an H-1B visa, go through the entire visa application formalities (i.e. payment of visa processing fees, filling up of the DS-160 form, etc.) and will have to appear in person for a visa interview. Only if your visa interview results in your visa being approved, only then would you be able to re-enter the US. Even with an approved H-1B petition, many visas are rejected in VIs, so it isn’t a given or necessary that an approval in the US translates to an automatic visa issuance at a consulate outside the US.

So, what is the difference between “visa approval” vs. “visa issuance”, or “H-1B petition being granted” vs. “visa being granted”?

1) A visa is merely a travel document that allows you to enter the US. Nothing more, and nothing less. It does not decide the validity or legality of your stay in the US, be it the F-1 visa (for students) or the H-1B visa (for temporary employees).

2) That “period of stay” is dictated by another document. In the case of an F-1, it is the I-20 which decides how long you can stay inside the US as a student (as indicated by the start and end dates on the I-20). In the case of an H-1B, that is given by your H-1B approval notice. The start date of every H-1B approved is the 1st of Oct of that same year, as I said above, but the end date can be any date until 3 years from the start date. Meaning, if your start date is the 1st of Oct. 2016, as per the current immigration regulations, your H-1B visa can be granted to run until some date before 30th of Sep, 2019, as specified by your employer in the H-1B petition which they have filed on your behalf.

3) “So, if I have an approved petition, that means I am all set, right?”

No, not completely true. That holds only if you stay inside the US. The H-1B approval notice, or the approved H-1B petition, only states that you can work under H-1B status starting 1st of Oct. 2016 (assuming your employer filed your petition on or after the 1st of April 2016). That in no way dictates, relates or states, if you can re-enter the US once you exit the US.

4) What do I mean by that, is the approval notice is NOT a visa and cannot be used to re-enter the US. So, even if you have an approved H-1B petition, once your OPT period ends, if you exit the US, you need another visa to re-enter the US. The petition kicks in once you have entered the US, or are already inside the US, in which case you can work for any employer full-time till the end date specified in the approval notice.

5) “But I already have a visa, so why do I need to get another one!”

Because if you came into the US as a student, the visa you got stamped in your passport, was an F-1, and not an H-1B. Different visa type, meaning if you exit the US when you’re on your new immigration status (meaning you have transitioned from F-1 to H-1B), you have to get a visa of your new type stamped. Your F-1 visa expires automatically on the end date of your 17-month OPT (or your 12-month regular OPT, in the case of non-STEM majors), irrespective of the end date printed on the visa sticker itself. As “cap-gap” is not considered to be either OPT or F-1, and neither is it considered H-1B, you cannot re-enter the US with either an F-1 or an H-1B visa, if you exit the US on “cap-gap”, and would have to wait until your H-1B validity period starts, and then go to take a VI to get your H-1B stamped.

Important point: The “cap-gap” period only kicks in, if your H-1B processing is underway (i.e. your employer has already sent in your documents and fees for H-1B visa processing) or if your H-1B visa is approved (you have the approval notice in your hand). If your H-1B petition was filed, but is denied, and your OPT ends, you can say goodbye to the USA and will need to go back to your home country, and in all such cases the “cap-gap” period doesn’t even kick in. If you get your denial in the “cap-gap” period, the same thing applies; you have no grace period to pack your bags, you are supposed to exit the US immediately, else you’re subject to deportation.

Also, there is no grace period or “cap-gap” period between the end of your regular OPT and your OPT STEM extension. As I have said above in this post, there can be no gaps anywhere in your immigration status, so not even a day’s gap between the end of your regular OPT and your OPT extension, else you’re out of status and again, subject to deportation from the US. So the “cap-gap” period is a facility that exists for people who have (1) a valid job offer from a US employer, and (2) a valid H-1B petition underway that was filed by that employer.

6) “What happens when our H-1B petition approved for a time slab of 3 or less years has expired?”

Then, basically, unless a new H-1B non-immigrant petition or an employment-based immigrant petition (i.e. a Green Card petition filed by your employer, to apply for a Permanent Resident card on your behalf) is in-process, you will have to pack your bags and go home.

So, you (or rather, your employer) cannot and should not wait for the 3 year period to get over. You should plan early, and get your H-1B petition filed into the USCIS well before the earlier H-1B expires. Keep in mind that the end date of your H-1B might not necessarily be a whole 3 years from the initial start date, e.g. my own H-1B expires not on 30th Sep. as one might expect (since I shifted over to H-1B status on 1st Oct.), but on 25th Sep., which is what my employer mentioned in the petition that was filed. Anyway, the process for subsequent H-1B filings is the same as the earlier ones, except that for the subsequent filings in any continuous 6-year period (i.e. you’ve held at least one H-1B visa in the past 6 years without any gaps), you will be cap-exempt. What that basically means is that for subsequent H-1B filings within 6 years from the date you first started on H-1B visa status, if there have been no gaps in your employment or stay in the US on H-1B status, then you won’t be subject to the 65k and 20k quotas, and that your application will be reviewed even if the 2 quotas fill up. That said, although it means that theoretically your petition can be sent in by your employer in September too, I’d recommend sending it out ASAP, because if you cross 1st Oct. and you haven’t gotten an approval or a denial from USCIS, then you can stay in the US but cannot work until your petition is approved.

For more details on cap-exemption, scroll to the end of this post.

What is the big deal about this “out-of-status” thing anyway and why is it being repeated so often in this post?

Because, even if you might not be caught at the time you commit the lapse (i.e. go “out-of-status”), it will come back to hurt you later on. Especially if & when your employer petitions for any subsequent US visa (be it an H-1B for you or an H-4 for your spouse), and especially if your company sponsors you for a green card later on. If any such points of time in which you were out-of-status are then unearthed, or if it comes to light that you had at some point in time overstayed your immigration status in the US for whatever reason (knowingly or unknowingly), you are considered to have broken US immigration laws. An immediate consequence of that is you getting deported back to your home country, but most importantly, (1) you can kiss that US green card good-bye, if you have ever been out-of-status in the US, and (2) if you choose to apply to any other country for a visa, be it the UK, Canada, etc., all of them have a question on their visa application forms, “Have you ever been deported from any country before?”, and (a) you cannot lie on it, and (b) if you don’t, which you shouldn’t, you will have a really hard time getting that visa too.

What exactly is meant by the “H-1B Cap”, and what is the meaning of “Cap-exemption”?

The H-1B quota of 65,000 (65 thousand) applicants per year for people with bachelors’ degrees from all over the world, and the separate quota of 20,000 (20 thousand) applicants per year for people with masters’ or doctoral degrees from universities in the MS, are together called as “Cap”. Thus, the cap for people with MS or PhD degrees from the US is 20 thousand, which is the maximum number of H-1B petitions that can be accepted for processing. Note, that the cap has no relation to the number of petitions that are approved by the USCIS, but the number of approved petitions will always be equal to, or less than the number of applications accepted within a cap for a particular year. When we say that the H-1B filing quota begins every year on 1st April, petitions are continued to be accepted till the time the cap is filled up. A similar thing happens for the 65k cap as well. Keep in mind that when you talk about the “Cap”, there are 2 restrictions which will necessarily come into play: (1) the date range i.e. from April 1st to the date the Cap is filled up completely, and (2) the number of petitions received for the USCIS, out of which only those number of petitions would be accepted, which would fill up the Cap, in a first-come-first-served basis.

So, what is “Cap-exempt”? Simply put, “Cap-exempt” H-1B petitions are those, which are not bounded by the number of petitions accepted for processing by the USCIS. That means, if your petition (through your employer, of course) is eligible for cap-exemption, and if your employer and H-1B petition satisfies all criteria to be classified as a “cap-exempt petition”, then your petition would be accepted for processing by the USCIS even if the Cap is filled out for that year. That also means, that if your petition is cap-exempt, it will not need to go in to the USCIS on 1st April, as other petitions would need to (because it is first-come-first-served, and hence the earlier your petition goes in, the better your chances are of it being picked for processing). A cap-exempt petition will be picked up for processing even if it reaches the USCIS after both the 20k and the 65k caps are filled out.

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