The H-1B visa program is crucial for U.S. employers to hire and keep talented foreign workers. However, getting an H-1B visa has become harder due to regulatory hurdles. During the filing period from April 1 to June 30, 2024, for FY 2025 petitions, it’s important to grasp the basics of these filings. This article provides tips for filing selected H-1B petitions in 2024, ensuring adherence to rules and boosting chances of approval.

April 1, 2024, Changes to Petition Filing

For the fiscal year 2025 H-1B season, there are new fees, forms, and filing locations for petitions, effective April 1, 2024. These changes include increased base filing fees for companies with 26 or more employees and an asylum program fee based on company size. It’s vital for companies to ensure correct fee submission to avoid rejection. Ongoing litigation regarding fee rules is not expected to impact cap filings, but staying updated on fee changes is essential.

Employers must use the latest I-129 form from USCIS since April 1, ensuring accurate submission to avoid rejection. Passport information should match the registration passport, not the current one if changed. Details about these changes will be discussed later.

A significant change for the FY 2025 petition filing is in the selection notice, directing employers to USCIS website for mailing addresses instead of specifying service centers. Using cap-subject locations for H-1B Cap Season filings is crucial.

Though not groundbreaking, these changes differ significantly from pre-April 1 filings. Staying informed about immigration updates is crucial to ensure current and correct filings and prevent rejections.

Passport Expiry Worries

This year, passports have become a significant issue. With USCIS moving to a new selection process, they are paying close attention to the beneficiary’s passport. If the beneficiary has received a new passport, USCIS has made it clear that this is acceptable. In these situations, employers should provide both the expired and new passports. Furthermore, they should use the passport used for registration on the I-129 form, rather than the new one. This allows USCIS to confirm registration while acknowledging the validity of the new passport.

Cap-Gap Eligibility

Cap-gap extends the work authorization of F-1 students on OPT or STEM OPT until September 30th of the fiscal year when their H-1B petition is filed. This benefit is helpful for those whose OPT or STEM OPT expires before the H-1B validity period begins on October 1st. However, meeting certain criteria is necessary to qualify for Cap-Gap.

In order to qualify for cap-gap:

1. The H-1B petition must be submitted for a change of status.
2. The H-1B petition must be submitted within the designated filing period.
3. The requested start date for employment must be October 1st of the same fiscal year. For this year, companies must request October 1, 2024.
4. The beneficiary’s OPT or STEM OPT must not expire before the filing of the H-1B petition.

Employers and beneficiaries must thoroughly review cap-gap eligibility criteria and ensure all requirements are met. It’s essential to understand that H-1B registration selection alone does not grant Cap-Gap eligibility; a filed petition delivered to USCIS before OPT expiration is necessary. Employers should prioritize filing H-1B petitions for beneficiaries with soon-to-expire OPT or STEM OPT to utilize the cap-gap extension.

Change of Status vs. Consular Processing

When filing an H-1B petition, employers choose between a change of status or consular processing. Change of status allows the beneficiary to activate the H-1B while staying in the U.S., while consular processing requires them to obtain the visa abroad.

The decision depends on factors like the beneficiary’s current immigration status, travel plans, and preferences. Those already in the U.S. may prefer a change of status to avoid travel and visa delays. Employers must show evidence of maintaining current status until October 1 for a change of status.

Consular processing may suit those planning international travel during processing. If a beneficiary leaves the U.S. while a change of status is pending, it might be considered abandonment, requiring consular processing.

Employers and beneficiaries should assess their circumstances and seek advice from immigration attorneys to choose the best strategy. They should also consider cap counting implications.

Abandoning Change of Status by Traveling or Denials of the Change of Status

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.

Travelling internationally after an H-1B petition has been filed for a change of status but before it is approved could be viewed as relinquishing the change of status request.

Conclusion

Understanding key factors when filing a new H-1B cap petition is crucial for employers and foreign nationals to navigate the process effectively and improve their chances of success. Seeking guidance from experienced immigration attorneys is highly recommended to ensure compliance with current regulations and develop a tailored strategy for each case.

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