5 Important Reminders for Cap H-1B Beneficiaries!
#1 – Cap-gap ends September 30th. The automatic cap-gap benefit ends September 30th. You cannot extend cap-gap. If you are reliant on cap-gap for work authorization and your H-1B cap petition is still pending after September 30th, you must stop working until the H-1B gets approved as you will no longer have work authorization from the cap-gap benefit. You may remain in the country in a period of authorized stay without worry of unlawful presence while the H-1B continues to remain pending. Once your cap petition is approved, you may resume working pursuant to that approved H-1B.
#2 – Remember to file your dependents’ change of status to H-4! For beneficiaries of H-1B cap petitions, as soon as the beneficiary's change of status to H-1B is approved, their dependent(s) will lose their current dependent visa status. If your H-1B petition and change of status request is already approved and you have not filed an I-539 change of status application to H-4 for your dependents, it is recommended to do so ASAP and you may need to include a nunc pro tunc argument to excuse the time the dependent has been out of status since the H-1B was approved. An alternative option is for the dependents to simply go for H-4 visa stamping.
#3 – Utilize the 60 days grace period if your H-1B is still pending past October 1 but ultimately denied. If your H-1B petition is still pending after October 1st but is ultimately denied, your 60-day grace period starts October 1st regardless. So whether your H-1B petition gets denied October 10th or November 2nd, you must take action before November 29th to change status to another visa category or transfer to a new school to continue on F-1 status. If your H-1B petition gets denied on December 5th, you will likely be out of status and must make plans to depart the country. Additional information on the 60 day grace period can be found in the article here.
#4 – Requesting a change of status to H-B after H-1B cap case was filed and approved for consular processing. Due to the COVID-19 travel restrictions and consulate closures, as well as the President’s Proclamation back in June 2020, it may not be feasible for a beneficiary to go for H-1B stamping currently. One possible option is to attempt to have the Petitioner file another H-1B petition for you requesting a change of status to H-1B instead of consular processing. However, we generally do not recommend this option as there are substantial risks one may face in doing so. In this scenario, USCIS will re-adjudicate the entire petition, not just the status portion, so any issues you previously addressed or were fortunate to have slip by may potentially become an issue once more. This could result in a RFE, a shorter approval, or even an outright denial. The Petitioner will also have to pay all the associated required fees again.
#5 – If your work location has changed since filing, you may need an amendment! Many employees found themselves suddenly working from home this year due to the ongoing pandemic. As a reminder, changes in work location may require H-1B employers to first file an amendment petition before the beneficiary can begin working at the new location. If the new location is within the same area of intended employment or Metropolitan Statistical Area (MSA) as the old location, an amendment is usually not required. However, any change in location outside of the same MSA or any other material change to the terms and conditions of the approved petition may require an amendment to avoid unauthorized employment. Additional information can be found in the article here.
It is important to remember that every case may differ depending on the specific facts of your case. If you have any specific questions regarding any of the discussed topics, it is highly recommended to first consult with your immigration attorney.
By: Cathy Liu
Cathy Liu is an associate attorney in the H-1B department at Reddy & Neumann, P.C. Her practice primarily covers H-1Bs and other nonimmigrant employment based visas.