My H-1B Petition Was Selected in the Lottery!

by Elizabeth Brettschneider

First off, congratulations! It’s good news, but only the first step. Everyone selected in the H-1B lottery must keep in mind that just because the petition was selected does not mean that the petition was approved—only that the case will have the opportunity to be adjudicated. For those whose petitions were selected, there are some key points to keep in mind.

F-1 Status and OPT

Foreign nationals whose petition was selected and who are in F-1 status with Optional Practical Training (OPT) that expires between now and October 1, 2019 are able to get their OPT extended through September 30, 2019. To do so, they must take the H-1B I-797 receipt notice, demonstrating that the case filed on their behalf has been selected in the H-1B lottery, to their university’s Designated Student Officer (DSO) in order for the school to issue a new Form I-20 with an annotation that the OPT has been extended through September 30, 2019. This new I-20 with extended OPT will extend their employment authorization until September 30, 2019. Please note, however, if the H-1B is not adjudicated until after October 1st, the work authorization will not extend past September 30th. In that case, those foreign nationals will have to stop working until the H-1B is approved.

Maintaining Status

Those in the US in any other visa status must continue to maintain their current status until their H-1B petition is approved. If approved before October 1, 2019, these individuals must continue to maintain status until their H-1B is effective on October 1, 2019. If approved after October 1, the foreign national must maintain a valid status through the date of approval. If the petition was filed as a change-of-status request, traveling internationally while the petition is pending will cause that change-of-status request to be denied. The H-1B petition can still be adjudicated, but beneficiaries will have to leave the US to obtain a visa abroad and return to the US in order to obtain H-1B status on or after October 1st.

Premium Processing

Rather than fully suspending premium processing requests, this year USCIS decided to offer it in two phases: first to FY 2020 cap-subject H-1B petitions requesting a change of status, and then secondly to all other FY 2020 cap-subject petitions. Premium processing for the first phase will commence no later than May 20, 2019. Applicants wishing to use premium processing for their H-1B petitions requesting a change of status should have concurrently filed Form I-907 with the H-1B petition on April 1. These petitions will not be processed by USCIS until after all data entry on cap cases has been completed—USCIS reported data entry was completed last week on May 17. Petitioners may also convert cases to premium processing that were filed as a change of status when premium processing begins. The rest of the FY 2020 cap-subject H-1B petitions will likely be able to upgrade to premium processing in June 2019.

Increase in RFE’s and Denials

H-1B petitioners and beneficiaries should also be aware of the increase in H-1B requests for evidence over the past years as well as a dramatic increase in denials. On April 18, 2017, President Trump issued the “Buy American and Hire American” Executive Order, instructing the Department of Homeland Security to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” After this executive order in 2017, there was a significant increase in both Requests for Evidence (RFE’s) and denials for H-1B petitions, even though there was no change in the law. Data released through the H-1B Employer Data Hub from USCIS shows that denial rates for initial H-1B petitions for FY 2019 is at thirty-two percent, three to four times higher than rates between FY 2010 and FY 2015, analysis from The National Foundation for American Policy (NFAP) shows.

Additionally, data released from USCIS shows that in the first quarter of FY 2019, the RFE rate jumped to 60 percent, compared to 45.6 percent in the first quarter of FY 2018 (up from 27.5% in first quarter of FY 2017). In our experience, in 2017, many of the RFE’s focus on a mistaken assumption that if a person holds a junior position in the company (as reflected by their salary) their duties would not be complex enough for them to be eligible for an H-1B. The Service was essentially confusing the seniority of the position with the complexity of the position. In 2018, the RFE’s simply questioned whether the job was complex enough to require a degree or whether the employer was justified in requiring a degree. It is likely that these issues or a variation of them will continue to come up again this year.

Over the next few months, USCIS will be working through all the H-1B petitions selected so everyone will hear back from them once their case has been decided. Good luck!

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