Dealing with the non-selection of your H-1B petition

This past April 2015, the H-1B lottery statistics painted a discouraging picture. Prospective employers filed over 230,000 cap-subject petitions for an available allotment of only 65,000 approvals, with an additional 20,000 for those who hold at least a master’s degree from a U.S. institution of higher education. Because of this situation, the U.S. Citizenship and Immigration Services (USCIS) conducted a random lottery to determine which petitions they would select to be reviewed for H-1B status.

If your petition was one of those that failed to be selected, then the following information may be useful to you.

You will know officially that your petition failed to be selected through the return, to your employer or to your attorney, of your entire petition package. That is, your employer or attorney will receive, from USCIS, everything that was filed for you: the petition, your immigration documents, your transcripts and any other evidence that was submitted. Your employer’s filing fee checks will be included, uncashed. The package also will contain a blue sheet that explains that due to lottery non-selection, your petition is being returned.

This non-selection is particularly critical if you were in an H-1B cap gap situation—that is, your F-1 status ended or will end between April 1 and September 30. Had your petition been selected and approved, you would have been able to remain in status (in many cases with work authorization) until September 30, then change to H-1B on October 1. However, such a cap gap extension of status is unavailable if your petition was non-selected. A key point, in this case, is that you must keep track of the end of your F-1 status. This end date is either 60 days past the end of your F-1 status (the end of the grace period, assuming you had a normal completion of program, with no status violations), or else it is 60 days from the date you are notified of your petition non-selection, whichever is later.

If you wish to stay in the United States lawfully, one or more of the following possibilities might be available to you.

-          Remain in F-1 status

You can choose simply to remain in F-1 status by enrolling at an appropriate institution. Depending on that institution and program, you also might be able to secure an immediate curricular practical training (CPT) and thus might be able to continue working at your current employer. Remember that people in F-1 status have no definite “admitted until” date. Rather, they are admitted for “duration of status.”

Please be as diligent as possible in ensuring that your F-1 school is legitimate. The worst thing that could happen is that you choose a school similar to Tri-Valley University. This school, a California institution,  was raided a few years ago by U.S. Immigration and Customs Enforcement (ICE) over its fraudulent practices. Therefore, I strongly suggest, at a minimum, that you verify the school’s accreditation by the respective regional accreditation body, for example the Middle States Association for schools in and around Pennsylvania. Each region of the U.S. has its own accreditation body.

-          Change to a dependent status

If you are married to a person with non-immigrant status, you could consider changing to a dependent status. For example, spouses of a J-1 person are eligible for J-2 status, while spouses of an H-1B person are eligible for H-4 status. Be aware, however, that such dependent status may or may not allow lawful employment. Also, keep in mind the new regulations that will allow certain H-4 status holders to apply for employment authorization, depending on the green card application status of the H-1B spouse.

-          Find a job with an H-1B cap-exempt employer

Certain employers are exempt from the H-1B cap. Such an employer could file a petition on your behalf without worrying about doing so in the first five business days of April. That petition would not need to be part of any lottery. If the petition were approved, you would not need to wait until October 1 to start work.

The three types of cap-exempt H-1B employers are

 o   Institutions of higher education, and proper affiliated entities

o   Non-profit research organizations

o   Federal government research organizations

Please note, however, that simply being non-profit, by itself, is INSUFFICIENT to exempt an employer from the cap. Similarly, simply being a non-governmental organization (NGO) by itself does not exempt an employer from the cap.

-          Find a non-H-1B job
Though H-1B is the most common non-immigrant work status, it is not the only one. Other potential statuses could include

o   G, for employees of an international organization such as the World Bank

o   I, for representatives of foreign media

o   R, for religious workers

Of course, you would need to eligible for such status and qualified for such job.

-          Enter into a bona fide marriage with a U.S. citizen

A spouse of a U.S. citizen is known, in immigration law terms, as an “immediate relative.” Such a person does not fall into any preference category, and need not worry about priority dates or cutoff dates. Immediate relatives always have an immigrant visa number immediately available to them. Please be aware, however, that engaging in marriage to evade U.S. immigration laws is a serious offense. Engaging in such a “sham” marriage could subject the non-U.S. citizen spouse to removal from the U.S., and possibly could lead to loss of citizenship for a naturalized U.S. citizen spouse. For this reason, such persons should ensure that their marriage is bona fide and that they can prove such bona fide nature.

A famous American saying states that “It ain’t over ‘til the fat lady sings.” This saying is based on the idea that many operas have, as their ending, a solo by a female opera singer who is stereotyped as being overweight. Only after this singer performs does the opera truly end.

In the same way, you possibly might not have received any receipt for your H-1B petition, even though your friends might have, as well as other clients of your attorney. You might be feeling discouraged or anxious in thinking that your petition was non-selected. Please keep in mind, however, that it ain’t over ‘til the blue sheet comes.

The information in this blog post does not constitute legal advice and does not create an attorney/client relationship.

Calvin Sun, Attorney at Law
cell 215-983-3723, csun@calvinsun.com, we chat: calvin_t_sun