June 2015 Employment-Based Immigration & Compliance Newsletter

Your Worker’s H-1B Petition Is Rejected by the Lottery – What Options Are There?

By the end of May, United States Citizenship and Immigration Services (USCIS) will complete the H-1B lottery and sent receipt notices to employers for the H-1B petitions that are selected in the lottery. If a filed H-1B petition is not selected in the lottery, the prospective employer and employee face the question – what’s next?

Many prospective H-1B workers are facing the end of their OPT (Optional Practical Training) status, typically in May or June. The filing of the petition to sponsor the worker for H-1B status automatically extends the worker’s OPT status until September 30, assuming the petition is selected in the lottery and assuming the petition is eventually approved. This automatic extension of OPT status is commonly referred to as “cap gap”. However, if the petition is not selected in the lottery, then this cap gap automatically ends. If the worker’s OPT status has expired at that point, then he or she is out of status, subject to a 60 day grace period. In order to remain in the U.S., the worker must identify and obtain an alternative immigration status during this grace period in order to lawfully remain in the U.S.

For individuals with STEM (Science, Technology, Engineering, and Math) degrees, the simplest alternative is to apply for the additional 18 months of OPT status available to these workers. Although there are some requirements that the worker and the employer must comply with in order to obtain the additional 18 months of OPT, obtaining this extension provides the employer with an additional opportunity to petition for H-1B status for the worker in the following year’s H-1B lottery.

For some individuals who are not selected in the lottery but who wish to remain in the U.S., the only solution is to re-enroll in school and take additional courses. However, although such individuals may remain in the U.S. in student status and take additional courses which may eventually help with their careers, in most cases, an individual would not be able to continue working while in student status.

A worker who possess extraordinary ability in his or her field may want to consider pursuing an O-1 visa. O-1 visa status allows individuals who possess extraordinary ability to engage in employment in the U.S., in their field of extraordinary ability. A petition for O-1 status may be filed by the employer, for the benefit of the worker. Alternatively, the candidate may self-petition for the O-1 status. While the O-1 visa provides many benefits, it would be rare for new graduates to possess the required level of extraordinary ability to qualify.

There are several other potential alternatives which may be pursued, including the possibility of immediately pursuing permanent resident status. Although the requirements for each of these alternatives differ, the common element is that they all must be pursued immediately because the worker no longer has valid immigration status after the OPT ends, subject to the 60 day grace period. If you have questions about potential alternatives following the rejection of an H-1B petition, please contact the immigration attorneys at Paule, Camazine and Blumenthal.

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

Transferring H-1B Workers to New Work Sites

On April 9, 2015, the Administrative Appeals Office (AAO) issued a decision meant to clarify when an employer is required to file a new Labor Condition Application (LCA) with the Department of Labor and an amended I-129 Petition for H-1B status with United States Citizenship and Immigration Services (USCIS) when an H-1B employee moves to a new work location. Following the issuance of the decision, USCIS issued guidance advising how the agency is implementing this decision.

Based on the AAO decision and USCIS guidance, if an employee in H-1B status is moved to a work site in a different Metropolitan Statistical Area (MSA), the employer must file both a new LCA and a new I-129 Petition before the worker may begin employment at the new location. USCIS guidance confirms that a new LCA and a new I-129 Petition is not required if the new work site is within the same MSA as the original work site. However, the original LCA must still be posted at the new work site before employment there may begin.

A new LCA and a new I-129 Petition are not required if the new work site is just a “short-term placement,” which generally is less than 30 days.

If a new I-129 Petition is not filed when it is otherwise required, the H-1B worker is in violation of his or her H-1B status if he or she begins working at the new work site. Such a violation could result in a denial of a future petition to extend H-1B status, the denial of the future petition to change or adjust status, or even removal from the U.S.

If you have questions about the ability to move H-1B employees to new work sites, please contact the immigration attorneys at Paule, Camazine & Blumenthal.

The choice of a lawyer is an important decision and should not be based solely upon advertisements.