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Creative Strategies for Unusual H-1B Situations

Published: 04/01/2023

You are known for creative strategies and helping clients deal with unusual H-1B situations. What are some issues you will highlight for colleagues at the Texas AILA chapter meeting?

We will discuss best practices for prepping for the 2024 cap season, new occupational codes used for H-1Bs, and how to handle employees in licensed professions. We will also discuss scenarios that require special considerations and creative legal arguments to successfully gain work authorization approvals.  

In what situation can people extend their H-1B visas beyond the six-year maximum?

There is a provision that allows people to extend their H-1B beyond the six-year maximum period if they have an approved immigrant petition but no green card is available. This is especially common for Indian and Chinese nationals for whom priority dates are significantly backlogged. But after the significant advancement of priority dates in 2020, many H-1B employees were no longer clearly eligible for these extensions, as they may have moved employers and thus not been able to file a green card application despite having been current for more than one year. Employees in this situation require a unique approach in order to continue to extend their status. 

Can someone with an approved H-1B lottery petition for one employer start with a new employer after the filing of a change of employer petition, even if they never worked for the original sponsoring employer?

Many attorneys will say you can’t do anything in this situation, that there are no options because the employee hasn’t been counted in the cap. But you can make an argument that the 60-day maintenance of status grace period post-termination applies and still file the change of employer petition, which I’ve done successfully. 

For example, if an H-1B visa holder has an approved start date of Oct. 1, but the beneficiary leaves employment with the sponsoring employer and comes to employer B (our client) before Oct. 1 so the H-1B hasn’t gone into effect, or it’s after Oct. 1, but the beneficiary hasn’t worked for the employer so has no pay statements, etc., I advise the client there is risk, but technically a change of employer petition filed within 60 days of Oct. 1 may be deemed valid and the beneficiary is both counted in the cap and maintaining status.  

Can you explain hiring “on receipt,” and should employers allow workers to start work on receipt?

Many employers believe that when they file a change of employer petition for an employee, they must wait for approval by USCIS. But technically that employee can start working for a new employer as soon as the petition is received by USCIS. In the past, both employers and employees have shied away from doing that because Request for Evidence and denial rates were much higher. However, we are now seeing fewer RFEs and denials, so employers are becoming more comfortable allowing employees to start work before receiving final approvals. The same goes for employees.  

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