United States: Now We Wait: What To Keep In Mind After Filing An H-1B Petition With USCIS

Last Updated: April 16 2019
Article by Melissa Manna

U.S. Citizenship and Immigration Services (USCIS) has completed the selection process for H-1B cap subject petitions filed for fiscal year (FY) 2020. On April 10, 2019, the agency ran computerized lotteries for both regular cap petitions and those subject to the U.S. advanced degree exemption after determining it had received a sufficient number of petitions to meet the congressionally mandated quota for each category. In all, USCIS said that it received 201,011 H-1B petitions in the five day filing period that ran from April 1 to April 5, 2019.

The announcement by USCIS confirms that H-1B cap season is in full swing. Unfortunately, meeting the quotas can sometimes feel like the fastest part of the application process for cap-subject H-1Bs. Here is a summary of what is likely to happen next along with some considerations for petitioning employers and their potential H-1B beneficiaries to keep in mind as the process continues to unfold.


USCIS will only issue receipts for petitions that are selected in the lottery for adjudication. Because of the sheer volume of filings USCIS receives at one time, it can take weeks, and in some cases months, for USCIS to process all the petitions and to issue receipts. There is no specific time frame for the issuance of all receipts. In recent years, receipts have been mailed to employers as early as mid-April and as late as June. Once USCIS has determined which cases will be adjudicated and has issued receipts, the petitions that were not selected in the lottery will be returned in the mail with a cover letter confirming that the case was not selected.

Premium Processing

For the first time in two years, premium processing is available for FY 2020 cap-subject cases. However, it will be implemented in two phases. The first phase will begin on May 20, 2019, for H-1B cap-subject change-of-status petitions. Employers that did not opt for premium processing during the initial filing may upgrade change-of-status petitions to premium processing beginning May 20, 2019. Premium processing for all other cap-subject H-1B petitions will begin in June 2019, at the earliest.

It is important to note that premium processing cannot begin unless and until the petition has been receipted. Once the petition is receipted, USCIS has 15 calendar days to process the case. This 15-day clock will start no earlier than May 20, 2019, for change-of-status petitions that were initially filed with premium processing.

Requests for Evidence

USCIS may issue a request for evidence (RFE) at any point during the adjudication process. A RFE is generally issued if USCIS determines that the petition is missing initial evidence or if additional evidence is required to establish eligibility for the H-1B visa. If USCIS issues an RFE for a case where premium processing has been requested, the RFE stops the adjudication clock until a response is provided by the petitioning employer. A new 15-day adjudication timeline starts once USCIS receives the response.

"Cap Gap"

F-1 students who are the beneficiaries of pending or approved H-1B petitions may be eligible for an extension of their F-1 status and work authorization if their employment authorization document expires between April 1, 2019, and October 1, 2019. The extension, called "cap gap," automatically extends the student's optional practical training (OPT) authorization. For students whose H-1B petitions are selected for adjudication, F-1 status and work authorization are extended through September 30 of a given calendar year. If the student's H-1B petition is not selected, work authorization ends either upon receipt of the H-1B rejection notice/return or the expiration of OPT work authorization, whichever is later. This year, USCIS began accepting H-1B petitions on April 1, 2019. Students whose OPT would otherwise expire between April 1 and October 1, 2019, could potentially utilize cap gap.

International Travel With a Pending Petition

Beneficiaries of H-1B petitions that were filed as a change of status may want to keep in mind that international travel will nullify the change-of-status request. In order to obtain H-1B status after traveling abroad, the employee will either have to leave the United States and travel to a U.S. consulate to obtain an H-1B visa or the employer will need to file a second H-1B petition with USCIS to request a change of status. (Canadian citizens are exempt from the visa requirement.) Additionally, F-1 employees who leave the United States while utilizing cap gap will void their cap gap authorization.

Ongoing Filing for H-1Bs

USCIS continues to accept H-1B petitions that are cap-exempt, including the following:

  • Petitions filed for current H-1B workers who have already been counted against the cap and who retain their cap number.
  • Petitions filed to extend the amount of time a current H-1B worker may remain in the United States
  • Petitions filed to change the terms of employment for current H-1B workers.
  • Petitions filed to allow current H-1B workers to change employers.
  • Petitions filed to allow current H-1B workers to work concurrently in a second H-1B position.

Ogletree Deakins' Immigration Practice Group will continue to monitor H-1B developments and will post updates on our immigration blog as additional information becomes available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions