The H-1B visa program has long been a crucial avenue for U.S. employers to recruit and retain highly skilled foreign professionals across various industries. However, the process of obtaining an H-1B visa has become increasingly complex due to regulatory, statutory, and policy hurdles that employers and employees must overcome. As we are in the middle of the filing window, which runs from April 1, 2024 to June 30, 2024, for FY 2025 (calendar year 2024) petitions it is important to keep in mind some key aspects of these filings. This article will provide an in-depth overview of the key considerations for filing selected H-1B petitions in 2024, ensuring compliance and maximizing the chances of a successful petition filing.
April 1, 2024, Changes to Petition Filing
One of the most significant changes for the fiscal year 2025 H-1B season is the implementation of new fees, forms, and filing locations for H-1B petitions. USCIS implemented new fees, forms, and filing locations on April 1, 2024 and there is no grandfathering in for the old fees or forms. The new fee regulation, which was published on January 31, 2024, includes an increase to the base filing fee for H-1Bs for companies with 26 or more employees and also includes an asylum program fee of $300 or $600 depending on the size of the company. For companies that are used to petition filing over the years, they need to be sure they are including the proper and complete fees or their case can be rejected. Notably, there is ongoing litigation with regards to the fee rule and while it is not anticipated to impact cap-filings, it is important to stay up to date in case there are changes to the filing fees.
Additionally, employers need to ensure they are using the most recent form version. USCIS has published a new I-129 that is effective starting April 1. While there are not significant changes to the form, if employers submit the incorrect form, or even submit an incorrect page of the form, the case will be rejected. One of the significant changes is a requirement that employers enter the information of the beneficiary’s passport that was used for registration. While this does appear on selection notice, employers should be cautious to use the passport that was used for selection and not the current passport if there has been a passport change. This will be discussed further later.
One of the major changes for the FY 2025 petition filing is on the selection notice. In the past, each selection notice included the USCIS service center that the petition needed to be mailed to. However, starting on April 1, USCIS moved to filings at a lockbox and the selection notice now directs employers to go to the USCIS website for direct filing addresses to determine where to mail their petitions. Note, this mentions multiple types of H-1B filings, be sure to use the cap-subject location for H-1B Cap Season.
These changes are not earth shattering in any way, but they are very different from pre-April 1 filings. It is important to follow these changes and that you keep up with immigration updates for future changes to ensure your flings are up to date and properly filed so as to avoid rejection.
Passport Expiration Concerns
One of the areas for concern this year revolves around passports. As USCIS transitioned to a new selection methodology, the focus for USCIS revolves around the beneficiary’s passport. As noted earlier, the passport used for registration will need to be entered on the I-129 form. However, what happens if the beneficiary has received a new passport? USCIS has clarified in multiple public statements that this is not an issue. In these circumstances, emplyoers should submit both the expired passport and the new passport, and include the registration passport still on the I-129, not the new one. This will allow USCIS to ensure there were no issues with the registration while still allowing for a new and valid passport to be submitted.
Cap-Gap Eligibility
Cap-gap is a provision that allows F-1 students on Optional Practical Training (OPT) or STEM OPT to extend their facially expiring work authorization until September 30th of the fiscal year in which their H-1B petition is filed. This provision is particularly beneficial for F-1 students whose OPT or STEM OPT is set to expire before the start of the H-1B validity period on October 1st. However, to be eligible for Cap-Gap a number of criteria must be met.
In order to qualify for cap-gap:
- The H-1B petition must be filed as a change of status.
- The H-1B petition must be timely filed during the filing window.
- The requested employment start date must be October 1st of the same fiscal year. For this year, companies must request October 1, 2024.
- The beneficiary’s OPT or STEM OPT must not have expired before the H-1B petition is filed.
It is crucial for employers and beneficiaries to carefully review the cap-gap eligibility criteria and ensure that all requirements are met. It is important to note that selection of the H-1B registration does not grant Cap-Gap eligibility and it requires a filed petition that is delivered to USCIS prior to the expiration of the OPT. Employers should consider prioritizing the filing of H-1B petitions for beneficiaries whose OPT or STEM OPT is set to expire soon, to ensure they can take advantage of the cap-gap extension.
Change of Status vs. Consular Processing
When filing an H-1B petition, employers have the option to request either a change of status or consular processing. Change of status allows the beneficiary to remain in the United States to “activate” the H-1B, while consular processing requires the beneficiary to leave the country and obtain the H-1B visa at a U.S. consulate abroad.
The choice between change of status and consular processing depends on various factors, including the beneficiary’s current immigration status, travel plans, and personal preferences. Beneficiaries already in the United States in a valid nonimmigrant status, such as F-1 or H-4, may prefer to file for a change of status to avoid the need for international travel and potential visa appointment delays at U.S. consulates. When seeking a change of status, petitioning employers must submit evidence that the employee will be maintaining their current nonimmigrant status until October 1 when the change of status would be effective.
However, consular processing may be a more suitable option for beneficiaries who plan to travel internationally during the H-1B petition processing time. It is important to note that if a beneficiary departs the United States while a change of status petition is pending, it may be considered an abandonment of the change of status request, requiring the beneficiary to pursue consular processing instead.
Employers and beneficiaries should carefully evaluate their specific circumstances and seek guidance from experienced immigration attorneys to determine the most appropriate filing strategy. Further, they should consider the impact of being counted against the cap as to whether or not they should seek a change of status or consular processing.
Abandoning Change of Status by Traveling or Denials of the Change of Status
As mentioned earlier, if a beneficiary travels internationally after an H-1B petition has been filed for a change of status and before it is adjudicated, it may be considered an abandonment of the change of status request. In such cases, the beneficiary would need to pursue consular processing to obtain the H-1B visa abroad. Further, as noted, beneficiaries must have evidence they are maintaining their status until September 30 to be approved for a change of status.
When filing an H-1B petition, there are two steps in adjudication; 1) does the petition qualify for the H-1B approval and 2) should the change of status be granted. It is important to remember that USCIS can approve the petition but deny the change of status requiring the individual to go for visa stamping.
It is crucial to be mindful of the timing of international travel and the potential implications it may have on the pending H-1B petition. If travel is unavoidable, it is recommended to consult with an immigration attorney to understand the risks and develop a contingency plan.
Conclusion
There are a lot of important aspects to consider when filing for a new H-1B cap petition. By understanding these critical considerations, employers and foreign nationals can navigate the H-1B visa process more effectively and increase their chances of a successful petition filing. It is highly recommended to seek guidance from experienced immigration attorneys to ensure compliance with the latest regulations and develop a comprehensive strategy tailored to the specific circumstances of each case.
Reddy Neumann Brown PC located in Houston, Texas, has been serving the business community for over 27 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.
Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.