Handling H1B Cap Returns

Receipts are arriving from USCIS for the cases accepted under the H-1B cap, but the returns will soon follow.  If you are in the U.S. on a student visa and a company has filed with USCIS to change your status to H-1B, missing out on the cap can be devastating.  No one is happy.
 
The first thing you must do is schedule time with your attorney to review all of your options.  Advice you read on the internet is always incomplete and overly simplified - even mine.  Often there is no good way out, but do not abandon hope until you are sure nothing has been overlooked. 

Below are just some of the possibilities your attorney may discuss:

---Try to find a position with an institute of higher education before your OPT runs out.  Many educational facilities post-high school are exempt from the cap and can file an H-1B petition anytime for an immediate start dates.

---Return to school and remain in F-1 status, if even to just remain in status until a new H-1B petition can be attempted next April.  Start working towards that Master's degree.  Remember that a U.S. Master's degree, even if not required for the job, will greatly increase your odds of being selected in a future H-1B lottery.

---Consider changing to a different status.  If your spouse is already an H-1B, change to an H-4.  Similarly, although much less desirable, consider you and/or your spouse becoming J-1s/J-2s.  If you have sufficient funds to finance a qualifying small/medium-sized business, the United States has a treaty of commerce treaty with the Philippines that allows the possibility of opening a business and changing your status to E-2.  There is also the possibility of changing your status for a short period to a B-2 visitor, but USCIS has stringent requirements in these circumstances, and the time allowed will may not be worth the cost and effort.

---STEM OPT, not often overlooked, but worth a reminder, that students with a science, technology, engineering or mathematics degree are often eligible for 17 months of OPT, sometimes in addition to the normal 12 months of OPT.

---Do not forget the grace period in which you can stay in the U.S. after your OPT expires:  60 days for F-1, 30 days for M-1 and J-1.  Although you cannot work during this time, you are still considered to be in lawful status for changing to some other visa category.

These are just some of the most common options.  Your attorney may find other possibilities based on your own individual circumstances.

And lastly, a little straight talk about money.  Obviously, all filing fees are returned to the employer once USCIS returns the checks.  As for professional fees, different attorneys have different contract provisions.  However, it is normal for professional fees to not be refunded as the work under most contracts was completed as long as the petition was properly prepared and filed.  We all know that success is never guaranteed and, with H-1B cap cases, a properly advised employer agrees before filing to accept the risk created by the H-1B cap.  However, at a minimum, many good attorneys will often offer a significant discount on next year's filing if the company wishes to give it another try.


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