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 electronic registration was selected does not mean that the petition was approved—only that the case will have the opportunity to be adjudicated. For those selected, there are some key points to keep in mind.
F-1 Status and OPT
For students on F-1 status with Optional Practical Training (OPT), whose OPT expires after April 1 and before October 1, with an electronic registration that was selected in the FY2025 lottery, if the H-1B petition is filed prior to the expiration of the OPT, the foreign national's work authorization will be automatically extended until October 1, by virtue of the H-1B filing.
To ensure the foreign national student does not fall out of status, 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) for the school to issue a new Form I-20 with an annotation that the OPT has been extended through September 30, 2024. This new I-20 with extended OPT will extend their employment authorization until September 30, 2024.
A few additional things to note:
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;
If the student’s OPT expires before the employer has the receipt for filing the case, they will have to stop working until a receipt notice for the H-1B arrives indicating that they were selected in the lottery and the case was filed. The student may only resume working once the receipt notice has been issued; and
The foreign national MUST remain in the US between the expiration of the OPT and October 1 to have continued work authorization. If they travel internationally during this time, they will abandon the change-of-status and may not be able to return to the US until September 21, 2024, if the case is approved.
Maintaining Status
Foreign nationals 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, 2024, these individuals must continue to maintain status until their H-1B is effective on October 1, 2024. If approved after October 1, the foreign national must maintain 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 to obtain H-1B status on or after October 1st.
Premium Processing
This year for FY2025 cap, effective April 1, 2024, employers with a selected electronic registration were able to submit paper-filed Form I-129 petitions requesting H-1B classification with a concurrent Form I-907, Request for Premium Processing Service, or they were able file the I-129 with I-907 request for premium processing online.
Employers and foreign nationals may want to use premium processing to have their case adjudicated within fifteen calendar days, which can be helpful for planning as well as peace of mind. Employers who filed a case for foreign nationals who hold F-1 status with OPT expiring September 30, 2024 may choose premium processing to ensure that the case is adjudicated before October 1, 2024, so that if approved the foreign national can continue working without interruption.
RFE’s and Denials
The number of USCIS Requests for Evidence (RFE’s) and denials for initial H-1B petitions have fluctuated over the years, largely dependent on the presidential administration in power, ranging from a Trump administration denial rate high of 24% in FY2018 to a Biden administration low of 2.2% in FY2022. Even with these lower numbers, H-1B petitioners and beneficiaries should be aware that RFE’s and denials are still possible.
In past years, many RFE’s focused 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). Past RFE’s have also 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.
The Next Steps
Over the next few months, USCIS will be working through the submitted H-1B petitions. Everyone will hear back once their case has been decided.
Good luck!
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