Your H-1B Application Was Filed Yesterday, Now What?

On March 31, 2009, companies around the country filed thousands of H-1B applications for their foreign workers.  How many thousands of cases were filed?  Right now, nobody knows.  Last year, it took the U.S. Citizenship and Immigration Service (USCIS) approximately one week to report that it had received close to 163,000 H-1B applications.  Although we do not think that the numbers will be that high this year, they are still likely to be close to or exceed the normal H-1B cap of 65,000. 

The USCIS has stated that, depending on the volume of filings, it may trigger the 5-business-day filing rule.  This means that the H-1B filing window will end on Tuesday, April 7, 2009.  If there is sufficient volume of filings to trigger this rule, the USCIS will conduct a random lottery after that date.

Our office will keep you updated once the USCIS provides information on the volume of filings, the 5-day filing rule, or anything else related to the H-1B situation.  In the meantime, we would like applicants to keep the following in mind:

·         If your H-1B application requested a ‘change of status’, any travel while your case is pending will result in an abandonment of the ‘change of status’ aspect of the application.  This does not mean that the entire case is over.  It only means that if your case is ultimately approved, you will have to leave the U.S., obtain an H-1B visa on or after October 1, 2009, and return to the U.S. with that H-1B visa and approval notice in order to work in H-1B status for your sponsoring employer.  Until then, you will not hold H-1B status even if the case is approved by USCIS.

·         Last year’s ‘cap gap’ rule will be in effect this year as well.   If you are a student in valid F-1 status but your Optional Practical Training (OPT) expires sometime before October 1, you will be able to remain in the U.S. until that date if your H-1B application is selected and approved.  If the H-1B application is ultimately revoked or denied, the automatic extension of OPT will be terminated.   


Immigration and Customs Enforcement recently issued a memo on the ‘cap gap’ rule.  We recommend that employers and students take the time to read the memo, which can be accessed by clicking here.


Stay tuned to for additional updates and information.