Reminders for H-1Bs with October 1, 2016 Start Date

H-1B Cap-subject petitions filed and approved for Fiscal Year 2017 will take effect on or after October 1, 2016.

Change of Status Filings:

For H-1B Cap petitions that were filed as “change of status” effective October 1, 2016, the beneficiary’s status will change from the current nonimmigrant status to H-1B on October 1, 2016, if the beneficiary:

• Was physically present in the U.S. for the entire period from the date the petition was receipted by the U.S. Citizenship & Immigration Services (USCIS) through the date the application was approved; and
• Is physically present in the U.S. on October 1, 2016 for the change of status to take effect.

After October 1, 2016, if the beneficiary departs the U.S., s/he must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in H-1B status. Most 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. The beneficiary is advised to check the website of the specific Consulate s/he intends to visit for further information relating to the scheduling of an interview and visa processing information.

Consular Notification Filings:

For H-1B Cap petitions that were filed as “consular notification” effective October 1, 2016, the beneficiary’s status will not automatically change from the current nonimmigrant status to H-1B without further action. In order 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. Please see comment above regarding the scheduling of an H-1B visa interview and visa processing information. (Note: Canadians are visa exempt.)

Form I-9 Reverification:

Employers are reminded of the obligation to reverify the employment eligibility of all H-1B Cap beneficiaries for whom a change of status filing was requested and approved, through completion of Section 3 of Form I-9. This reverification must be completed on or before commencement of the H-1B period of authorized stay (typically October 1, 2016).

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, please note that once an F-1 or J-1 foreign national changes status to H-1B, s/he will no longer be exempt from FICA tax.

Pending Petitions:

For H-1B Cap-subject petitions that were filed with regular processing and remain pending with the USCIS, petitioners or beneficiaries may wish to request an upgrade utilizing the Premium Processing method for an additional government filing fee, which ensures adjudication of the petition (or a request for further evidence) within fifteen (15) days of the request.

For more information, please contact your designated Gibney representative or email info@gibney.com.