Cap-Subject H-1Bs Approved for Fiscal Year 2018 to Take Effect on October 1

H-1B cap-subject visa petitions filed and approved by U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2018 will take effect on or after October 1, 2017.

Change of Status Filings:
H-1B cap-subject petitions filed as “change of status” will take effect on October 1, 2017 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 application was approved
• Is physically present in the U.S. on October 1, 2017 for the change of status to take effect

After October 1, 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 require a number of 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 beneficiaries are advised to check the website of the specific Consulate for further information on scheduling the interview and visa processing.

Consular Notification Filings:
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, 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. (Note: Canadians are visa exempt.)

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: Employers with pending H-1B cap-subject petitions can now request an upgrade to Premium Processing by filing Form I-907 along with an additional filing fee in the amount of $1,225. USCIS must respond within the 15-day period with either an adjudication or Request for Further Evidence, or will refund the fee. USCIS has stated that approval by early October is not guaranteed.

Please visit the USCIS website for further details on the H-1B process. For more information, please contact your designated Gibney representative or email info@gibney.com.