Approved H-1B Cap Petitions Effective October 1

H-1B cap-subject visa petitions filed and approved by U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2020 take effect on or after October 1, 2019. Next steps for employers may include Form I-9 Reverification and taxes for F-1 and J-1 Non-Immigrants.

Change of Status Filings

Approved H-1B cap-subject petitions filed as “change of status” automatically take effect on October 1 if the beneficiary:

• was physically present in the U.S. for the entire period from the date the petition was received through the date the petition was approved; and
• is physically present in the U.S. on October 1, 2019 for the change of status to take effect

With the exception of Canadian citizens, a beneficiary departing the U.S. must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in valid H-1B status. U.S. consulates require a personal interview to apply for a visa and most have a wait period of several weeks to schedule an interview. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and visa processing. Visa applicants should also be aware that U.S. consulates do not guarantee a specific timeframe for visa processing as there can always be additional delays such as “administrative processing” (i.e., background and/or security checks), which may delay processing for 2 weeks to 8 weeks or more.

Consular Notification Filings

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps For Employers

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9 for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: There are numerous H-1B cap petitions still pending and USCIS has stated that approval by October 1 is not guaranteed. As such, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2019.