H-1B workers are rightfully anxious these days. H-1B Requests for Evidence (RFEs) and denials are at an all-time high as a result of President Trump’s Buy American, Hire American (BAHA) Executive Order. In the 1st quarter of 2017, the USCIS was issuing RFEs in 17% of the H-1B cases filed, but the number jumped to 69% by the 4th quarter and may actually be higher now. In 2015, USCIS was denying only 5% of H-1Bs filed, a number that went up to 22.4% in 2017. As a result, H-1B workers are less and less likely to feel comfortable porting to their new employers upon the filing of an H-1B transfer and may prefer to wait until their H-1B is approved. The situation is made worse by the fact that the USCIS temporarily suspended premium processing for H-1B transfers on September 11, 2018, until at least February 19, 2018, which means that H-1B transfers will take many months to be adjudicated.
Since most employers hire workers on an as-needed basis and cannot afford to wait many months for the USCIS to adjudicate an H-1B transfer, the following points may help HR and recruiting professionals understand how they can proceed and alleviate the anxiety of their prospective H-1B workers.
- Regulations permit an H-1B worker to commence new or concurrent employment upon the filing of a non-frivolous H-1B transfer with the USCIS.
- The term “filing” requires that the H-1B transfer must have been received by the USCIS. This means that the H-1B worker may legally commence employment prior to receiving the H-1B Receipt Notice, which is typically issued days or a few weeks after filing.
- In premium processing cases, the H-1B Receipt Notice is usually e-mailed within 1-3 days of filing. In regular processing cases, the H-1B Receipt Notice is usually mailed within 1-3 weeks of filing. In either scenario, the employer may check with its bank to see if the filing fees have been cashed by the USCIS, which indicates that the petition was received and accepted and also includes the Receipt Number.
- In practice, most employers and H-1B workers prefer to wait until receiving the H-1B Receipt Notice for confirmation that the H-1B transfer was actually received and accepted by the USCIS.
- On September 11, 2018, the USCIS suspended premium processing for H-1B transfers until at least February 19, 2018, but the suspension may be extended beyond that date.
- For now, all H-1B transfers must be filed with regular processing, which on average takes between 6 to 8 months to be adjudicated by the USCIS. This average does not take into account delays caused in cases where the USCIS issues a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
- H-1B RFEs have increased significantly in the last year and have become the norm in H-1B filings, last reported as being issued in 69% of all H-1Bs filed.
- The individual may continue to work for the new H-1B employer for the entire time that the H-1B transfer is pending with the USCIS, even in cases involving an RFE or NOID.
- The individual must only stop working for the employer if the H-1B transfer is denied unless the individual has a separate form of work authorization that allows continuing to work (e.g Employment Authorization Document – EAD).
- The individual may in some cases be able to resume working for the employer a few weeks or months after a denial, depending on circumstances. Regulations allow a one-time grace period of up to 60 days upon the termination of the H-1B employee, but this is discretionary and limited to the remaining validity period of the previous H-1B approval. As such, in some cases, the individual may be able to resume working upon the refiling of the H-1B transfer, typically about 2 weeks later. In other cases, the individual may need to wait until the 2nd H-1B transfer is approved and the individual travels abroad and returns in H-1B status, which may take months.
- While H-1B denials are also on the rise, the USCIS is still approving the majority of H-1Bs filed, even after an RFE. The USCIS approved 77.6% of all H-1Bs filed in the 4th quarter of 2017.
- In many cases, the H-1B may be approved upon refiling and addressing the issues in the first denial.
Please contact an attorney at Minsky, McCormick & Hallagan, P.C. if you need assistance in your H-1B matters.