USCIS Prioritizing H1B Cap Subject Cases

There continue to be delays in processing H1B petitions. This issue involves both the California Service Center (CSC) as well as the Vermont Service Center (VSC). The matter is urgent for cap-subject cases as the H1B start date of October 1, 2012, which is requested in most cap-subject cases, approaches. The steps the U.S. Citizenship and Immigration Services (USCIS) is taking to address this matter, as well as some of the considerations for those facing such delays, are explained here for MurthyDotCom readers.

USCIS Assigning Additional Staff to Process H1B Cap Cases

The USCIS has advised the American Immigration Lawyers Association (AILA) that additional staff has been assigned to the task of adjudicating H1B cap-subject cases. The USCIS states that the adjudication of these cases by October 1st is a top priority.

Issues for F-1 Students and Others

Delays in H1B adjudications beyond October 1, 2012, will either delay the employment eligibility of the foreign national or force the increased use of the premium processing option. Premium processing is a useful and valuable option available to expedite certain cases, including H1B petitions. However, the expedited service requires payment of an additional filing fee of $1,225.

Many F-1 students found their employment during their authorized periods of Optional Practical Training (OPT). Continued employment authorization under the H1B cap-gap provisions ends on October 1, 2012 for students whose OPT validity has expired. If the cases filed for these recent graduates are not adjudicated prior by October 1, 2012, therefore, disruption in the F-1s’ authorizations to work will result.

Students are not the only beneficiaries of cap-subject H1B filings. These cases are filed for potential employees holding other nonimmigrant statuses, such as H-4. Absent case approval, the sponsoring employers must be willing to continue waiting for their potential employees to be eligible to work.

Such H1B cases are also filed on behalf of those seeking to transition from cap-exempt employment to cap-subject employment. While these individuals generally, arguably, are eligible to work pursuant to H1B portability provisions, it is typically advisable to wait for the H1B approval prior to making a change in employment.

Conclusion

To those still awaiting decisions in H1B cap-subject cases, the USCIS confirms that they are aware of the problem and indicates that they are prioritizing such H1B adjudications. For many, hopefully, the matter may be resolved in the near future.

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