Greenspoon Marder Client Alert: COVID-19 Related Delays in FY 2021 H1-B Cap and Extension/Change of Status Filing

Apr 15, 2020

COVID 19 Delay in Data Entry and Receipt Generation for FY 2021 H-1B Cap-Subject Petitions

On April 13, 2020, USCIS announced that it would not immediately enter data and generate receipt notice for FY 2021 H-1B cap petition due to the impact of COVID-19 until at least May 1, 2020. As a result, the petitioner should expect a significant delay in receiving the H-1B receipt notice for the FY 2021 H-1B cap petitions. USCIS confirmed that it would complete the intake processing in the order in which it receives the petitions once it starts the data entry process. Petition receipt date will be the date it arrived at the service center if otherwise properly filed.

USCIS alerted that the petitioner should also expect a general delay in adjudicating the FY2021 H-1B cap petitions due to the delay of data entry and receipt generation. However, USCIS will be “mindful of petitions with sensitive expiration and start date, such as cap-gap petitions and will strive to process these petition as efficiently as possible.”

Although there will be a delay in receipt generation and adjudication process, USCIS confirmed that the filing window of H-1B cap petition would not be changed. The petitioner is still required to file the FY 2021 H-1B cap petition within the filing window on the registration selection notice.

COVID 19 Delays in Extension/Change of Status Filings

On the same day, the Department of Homeland Security also provided some guidance on the COVID-19 Delays in Extension/Change of Status Filings. USCIS recognized the nonimmigrant may unexpectedly remain the U.S. beyond their authorized period of stay due to COVID-19 and provided the following options if this happens:

Apply for an Extension. Most nonimmigrants can avoid the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). USCIS will continue to accept and process applications and petitions, and many of forms are eligible for online filing.
If You File in a Timely Manner. The nonimmigrants generally do not accrue unlawful presence if the non-frivolous EOS/COS petition is timely filed and pending. Additionally, certain visa holders’ employment authorization with the same employer will be automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed timely.
Flexibility for Late Applications. USCIS in its discretion can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances. The petitioner and applicant are required to submit credible evidence to support the request of extraordinary circumstances. This type request will be reviewed on a case-by-case basis.
Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days under the current regulations. If those VWP entrants already granted satisfactory departure are still unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure. Requests for satisfactory departure are generally adjudicated by USCIS. However, in extraordinary circumstances, CBP may adjudicate requests for satisfactory departure. Currently, a VWP entrant should contact the CBP deferred inspection to request for Satisfactory Departure.

Please reach out to our office if you have any further questions regarding USICS’ recent announcements. Thank you.

This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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Greenspoon Marder Client Alert: COVID-19 Related Delays in FY 2021 H1-B Cap and Extension/Change of Status Filing

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