Despite a marked decrease in H-1B petitions filed to date, USCIS is making little effort to adjudicate its current caseload of H-1B petitions in a timely fashion. The USCIS’s stated processing times for H-1B’s are more than two months off the actual processing times, which are approaching five months and increasing.
The effect of the processing slow down is that some beneficiaries and employers are being forced to move cases into premium processing or risk losing work authorizations. One affected group is the cap-gap student who has an expired Optional Practical Training (“OPT”) work permit, but is permitted to continue working until October 1st under the cap-gap regulations.
To qualify for cap-gap relief, an H-1B petition for a change of status must be timely filed on behalf of an eligible F-1 student. The student must be in authorized status, meaning, within the OPT period, which includes the 60-day post-departure preparation period, commonly known as the “grace period.” Once a timely filing has been made, the automatic cap-gap extension will begin and will continue through September 30th, unless the H-1B petition is denied, withdrawn, or revoked.
Because USCIS is not doing its job of adjudicating petitions, many cap-gap students are now faced with a not-yet-approved H-1B and October 1st approaching. If this situation applies to you, several steps need to be taken:
1. Notify legal counsel immediately. Counsel may be able to request that the case be expedited without premium processing.
2. The student must go on unpaid leave after September 30th, continuing until the H-1B is approved.
Contact legal counsel immediately if you wish to premium process the application. Premium processing is an extra $1,000 filing fee. Even with this payment, you may not get the case adjudicated for 10 business days.