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The Effect of a Cap-Subject H-1B Withdrawal

For beneficiaries of cap-subject H-1B petitions, the effect of an H-1B withdrawal can be significant, due to the timing of the October 1 petition start date. Much depends on the timing of the withdrawal and whether the H-1B status went into effect.

If the petition is approved with a change of status, and the withdrawal occurs after October 1:

In this scenario, the H-1B petition was filed by June 30 and approved prior to October 1, and the approval notice included the I-94 attachment with an effective date of October 1. As long as the beneficiary is in the United States on October 1, the change of status goes into effect on October 1, and their nonimmigrant status automatically becomes H-1B. If they are no longer employed by the H-1B petitioner, and the petitioner sends a withdrawal notice to USCIS after October 1, the beneficiary is still in H-1B status, but now has 60 days to have an H-1B transfer filed on their behalf by a new company, or to file a change of status application to another classification, or depart the U.S. This is the same 60-day grace period afforded to all H-1B beneficiaries upon the termination of their employment. Assuming the petition is not revoked by USCIS due to fraud or misrepresentation, then as long as the beneficiary can find another employer within the grace period and have an H-1B transfer filed on their behalf within that timeframe, the withdrawal of the initial petition has little effect – the beneficiary does not need to go through the H-1B lottery again, and does not have any violations of status.

If the petition is approved with a change of status, and the withdrawal occurs before October 1:

The withdrawal of a cap-subject H-1B petition prior to October 1 has far more serious consequences. The withdrawal prior to October prevents the H-1B status from going into effect, and without that, the beneficiary is not considered to have been counted against the H-1B cap, despite their registration being selected and the petition being approved. The beneficiary would need to be registered in a new fiscal year’s H-1B lottery and be selected again in order to have another opportunity to change to H-1B status.

Furthermore, the H-1B approval being withdrawn before going into effect means that the beneficiary must maintain their existing nonimmigrant status beyond October. For beneficiaries whose existing status was H-4, L-1, L-2, TN, E-3, or similar classifications, their status will be unaffected by the H-1B withdrawal, as long as their I-94 is valid beyond October (they will then need to timely extend or change that existing status prior to the original I-94 end-date).

For beneficiaries who were in F-1 status however, the pre-October H-1B withdrawal can complicate their status significantly, due to the SEVIS system. SEVIS automatically terminates F-1 nonimmigrants on October 1 if DHS records indicate they are the beneficiaries of an H-1B change of status petition. However, SEVIS is not updated by DHS when a petition is withdrawn and the change of status will not go into effect – this is because the only current procedure for submitting a withdrawal is a letter mailed by the petitioner to the adjudicating service center, which can take months to update in USCIS’s system. Therefore, although F-1 students whose H-B petitions are withdrawn prior to October should be eligible to continue their F-1 status, the automatic termination by SEVIS renders them unable to. The only way to restore students in this situation is for the student to provide a copy of the withdrawal letter to their school’s DSO, who should then request a SEVIS data fix. The data fix seems to have varying levels of success and can be a lengthy process. In the meantime, until they are restored in SEVIS, the F-1 student would not be able to continue their OPT employment or enroll in school.

If the petition is pending at the time of withdrawal:

If the H-1B petition is withdrawn before it has been adjudicated, the beneficiary would not be considered counted against the H-1B cap, and would need to be selected in a future lottery again. They would also need to take measures to maintain or extend their existing nonimmigrant status. The one small advantage of a pre-adjudication withdrawal for F-1 students is that it would not affect their SEVIS record, and they should be able to continue their school enrollment and/or OPT employment without incident.

If the petition requested consular processing:

For petitions that requested consular notification, rather than a change of status, if the beneficiary does not receive the visa from a consulate prior to the withdrawal, they are not considered counted against the H-1B cap, and would also need to be selected in a future lottery. This is the case even if the petition is withdrawn after approval, and after October 1.

The consequences of withdrawal of a cap-subject H-1B petition can therefore be serious, depending on the timing, the petition’s requested action, and the applicant’s current nonimmigrant status. Beneficiaries in this situation, particularly F-1 students, are encouraged to consult with an attorney to confirm the effect on their current status and to discuss options going forward.

By: Rebecca Chen

Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.