Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
I am currently on F-1 STEM OPT, which expires the first week of June. The company I’m working for is registering me in the H-1B lottery for the second year in a row.
When is the lottery happening this year?
If I get selected in the lottery in March, will I have to stop working in June until I receive approval for an H-1B? If I don’t get selected in the lottery, what are my options?
Let me dive right in and answer your first question: If you get selected in the H-1B lottery in March, you may be able to continue living and working in the U.S. on your STEM OPT work permit until October 1, 2022, under what’s called Cap Gap. The Cap Gap extension bridges your work authorization between the end of your final year of F-1 OPT or STEM OPT until you start working in H-1B through a Change of Status, which I explain in detail along with the H-1B lottery, job titles, interesting data and other tidbits in my recent H-1B podcast.
Keep in mind that for F-1 students currently on OPT, the U.S. Department of Homeland Security recently added 22 new fields to the list that qualifies for STEM OPT. These new degrees now include computer science, cloud computing, economics, financial analytics, data analytics, environmental studies, and even certain social science degrees. This is a big deal and will support a lot of students — we are super excited over here!
Given that you will need to qualify for a Cap Gap extension to continue working, I highly recommend that you and your employer contact an immigration attorney ASAP to navigate the lottery and Cap Gap process. The company’s immigration attorney will register you in the lottery (the random selection of H-1B petitions subject to the annual numerical “cap” by the Immigration and Nationality Act).
USCIS just announced that FY 2023 H-1B Cap Initial Registration Period will run from March 1 to March 18. By March 31, USCIS will notify employers or their legal representatives whether H-1B beneficiaries were selected in the lottery, and H-1B petitions for those beneficiaries can be submitted as early as April 1.
Your company’s attorney will also track your petition and notify you of updates. They will create the necessary Labor Condition Application (LCA) that needs to be submitted to the U.S. Department of Labor for certification; a certified LCA must be submitted with the H-1B petition to U.S. Citizenship and Immigration Services (USCIS). In addition to helping you put together a strong H-1B petition, an experienced attorney will also counsel you on strategy and provide backup plans for you and your employer if you’re not selected in the lottery.
How does Cap Gap work?
In order to continue working under Cap Gap, your employer will need to submit an H-1B petition on your behalf before your STEM-OPT work authorization expires. This is not to be confused with the end of your F-1 grace period. So, for example, typically for somebody whose final year of OPT ends in the first week of June, if they are selected in the H-1B lottery, the attorney would typically aim to file the full H-1B petition earlier than by the standard 90-day deadline, and prior to your work permit expiration, in order to qualify you for Cap Gap.
I often recommend, for your peace of mind – and your employer’s – to file the H-1B petition with premium processing, especially in Cap Gap scenarios. For a $2,500 premium processing fee, USCIS will take action on your case within 15 calendar days. H-1Bs can often take six to nine months without premium processing, and especially in the Cap Gap scenario, you want to do everything you can to obtain approval before October 1. If somebody in Cap Gap still has a pending Change of Status to H-1B on or after October 1, they typically can stay in the U.S. while awaiting adjudication, but they usually are not able to work after October 1.
So, getting a quick decision on the H-1B petition will give you, your employer, and your immigration attorney peace of mind and allow you to put the best foot forward to maintain your ability to live and work in the U.S. without interruption. It will also allow for extra time to implement your backup plan if necessary.
Not selected in the lottery? H-1B denied?
Your second question about options if you’re not selected in the lottery is one that I’m asked quite often. An immigration attorney can best determine alternatives to the H-1B based on your qualifications, timing and the position your employer is offering.
Generally, a cap-exempt H-1B or an O-1A extraordinary ability visa are the quickest options — they both require an employer to sponsor you. However, qualifying for an O-1A is more difficult for recent graduates who have not yet made significant contributions to their field.
Take a look at this previous Ask Sophie™ column in which I discuss additional options. In that column, I answer a question from an employer looking to hire international talent from abroad — you might also be eligible for the same visa options mentioned while remaining in the United States.
If USCIS does not approve your H-1B petition during Cap Gap, you and your employer should know that your work authorization will immediately expire and your F-1 60-day grace period for remaining in the U.S. will begin. You would be free to travel within the U.S. during this grace period or to begin a new F-1 program, but if you leave the U.S., you would not be allowed to reenter — even if you have time remaining on your 60 days — unless you have a valid visa. Once you depart the U.S., the grace period ends.
Wishing you every success in obtaining your H-1B!
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The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!