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Immigration Law Blog

Tuesday, July 25, 2017

H-1B CAP – How to Prepare for and What to Expect on October 1st

The USCIS confirmed at the end of June that it has returned all rejected H-1B CAP petitions, and petition adjudication is underway. We expect requests for evidence (RFEs) and approvals to keep trickling in through the summer. Here are a few tips for employer and beneficiaries in anticipation of new H-1Bs coming in on October 1st.

Consular Processing

Upon the approval of the H-1B petition, Beneficiaries of consular processing H-1Bs will need to take the necessary steps to schedule an appointment to apply for an H-1B visa at a US consulate abroad. The following steps will need to be taken:

  • Complete DS-160 and pay required fees.
  • Schedule an appointment at the appropriate consulate in his/her home country.
  • Ensure the proper documents are in hand for the appointment. This includes:
    • Original H-1B approval notice on Form I-797. This should be forwarded to each Beneficiary by the employer;
    • Valid passport with more than 6 months’ validity;
    • Copy of the petition. Beneficiaries should contact his/her employer for a copy of the petition. Please note that corporate financial documents may be sealed in a separate envelope by the petitioning employer.

Once the H-1B visa stamp is issued in the Beneficiary’s passport, the Beneficiary can arrange for travel to the US. We strongly advise against purchasing airline tickets before visa appointments. We are seeing an uptick on 221(g) administrative processing referrals, which are issued for additional security checks or the request of additional documents to assist the consular officer in the processing of the visa application. Please wait until your passport with visa stamp is returned to you before scheduling your travel arrangements.

Please note that H-1B visa holders can enter no earlier than 10 days prior to the start date of their H-1B status indicated on the approval notice on form I-797. Beneficiaries are not able to work until the start of the H-1B validity period indicated on the approval notice.

H-4 Dependents

Spouses and children of H-1B beneficiaries can apply for H-4 visas abroad along with the principal H-1B holder. Each applicant is required to:

  • Complete form DS-160 and pay the required fees;
  • Schedule an appointment with the H-1B holder at the appropriate consulate in his/her home country; and
  • Ensure the proper documents are in hand for the appointment. Along with the above listed documents, H-4 applicants should have in hand:
    • Copy of marriage certificate for spouses;
    • Copy of birth certificate(s) for children;
    • Valid passport(s) with more than 6 months’ validity. Please contact your company representative should you have any questions about the process.

    Change of Status

    Upon the approval of the H-1B petition, Beneficiaries of Change of Status petitions will effectively “change status” on the start of start date of their H-1B validity period indicated on the approval notice on Form I-797. In many cases this is on October 1st, but this date can vary.

    H-1B beneficiaries with change of status petitions filed on their behalf must remain in the US until the approval of the petition; otherwise, the petition may be considered abandoned by the USCIS. In some situations, the USCIS will issue a consular processing approval in lieu of a change of status approval.

    H-4 Dependents

    If your dependent(s) are in the US – if a change of status application has not yet been filed for your spouse or child(ren), please contact your company representative immediately to initiate the process. A change of status application for H-4 dependents must be received prior to 10/1, or the beginning of the H-1B validity period indicated on the approval notice, whichever is earlier.

    If your dependent(s) are abroad – upon the approval of your H-1B petition, dependents can schedule a visa appointment at a consulate abroad in the dependents’ home country. They will need in hand:

  • A copy of the principal H-1B holder’s approval notice on form I-797;
  • Copy of marriage certificate for spouses;
  • Copy of birth certificate(s) for children;
  • Valid passport(s) with more than 6 months’ validity.
  • Please contact your company representative should you have any questions about the process.

    Tips for Employers

    Please be sure that your H-1B employees start on or after the start date indicated on the approval notice issued on form I-797.

    Each H-1B Beneficiary must have an I-9 form completed prior to commencing employment. For employers with F-1 students changing status on 10/1 or later: please be sure to re-verify your H-1B employees accordingly.


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