USCIS Delays H-1B Cap Intake and Receipting; Significant Impact on F-1 Cap Gap Cases

USCIS has announced that H-1B cap petitions will experience a significant delay in the case intake and the issuance of receipt notices as a result of the Coronavirus/Covid-19 outbreak. USCIS have announced that they will not begin processing any filed H-1B cap petitions until at least May 1 although they will continue to accept filings.

Data Entry and Receipt Issuance Delayed

Our office is aware of a temporary closure at the Vermont Service Center for several days last week due to a suspected Covid-19 infection and it appears that USCIS is changing its intake and data entry/receipting procedures for all H-1B cap cases as a result of this kind of risk and new safety protocols. USCIS has confirmed that they have not and will not be immediately entering data for FY2021 H-1B cap petitions until at least May 1, 2020.

Once intake is restarted, USCIS has assured that they will process in which petitions were received at the service centers and each petition will be granted a “filing” or “received date” as of the date the actual petition filing was delivered to USCIS. In other words, the filing date should be retained even if the intake and the receipt issuance is delayed.

F-1 Cap-Gap Challenges

One of the major challenges as a result of this delays is for F-1 students who had to rush and file their selected H-1B petition before their OPT expiration in order to take advantage of the F-1 OPT cap-gap rule (more about the F-1 OPT cap-gap rule). USCIS has acknowledged that their receipting delay will pose challenges to a notable population of F-1 students with expiring OPTs in April or May but USCIS have not proposed a solution or an alternative.

Our office is working with affected F-1 OPT cap-gap students and DSOs to identify workarounds in order to take advantage of the F-1 OPT cap-gap rule based on evidence of timely-filed and delivered to USCIS H-1B cap petition such as FedEx delivery confirmation, copy of filing, or even attestation by the attorney.

DSOs may be able to grant a temporary OPT cap-gap extension on the basis of evidence of H-1B filing and then revise and extend until September 30th based on the H-1B cap petition receipt notice.

H-1B Cap Filing Window Remains Until June 30th

USCIS has clearly indicated that the June 30 deadline to submit a timely H-1B cap petition based on selected registration remains unchanged even as a result of this delay. As a result, we urge selected H-1B cap petitioners to work on preparing and submitting H-1B cap cases as soon as possible and definitely well before the June 30th deadline.

According to Dimo Michailov, Principal Attorney at the Capitol Immigration Law Group,

Over the past several weeks we have witnessed closures, disruptions and delays in routine services such as USCIS intake, FedEx delivery and others, all of which we used to take for granted before the Covid-19 pandemic. As a result, we strongly recommend building extra time and taking all necessary and proactive steps, including filing early, to avoid delays or disruptions caused by factors outside of one’s control.

Conclusion

Our office is ready to assist with the preparation and throughout the adjudication process of selected H-1B cap cases — please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong and timely H-1B petition.