This is a follow-up to our article Delays in H-1B Adjudication.
USCIS continues to be slow in the processing of all types of H-1B petitions. Based on recent approvals, petitions for new H-1Bs as well as H-1B extensions are taking approximately 5 months. Cases that receive a Request for Evidence will easily take 6 months or longer.
This delay has important ramifications for some foreign national employees. For H-1B applicants currently in F-1 status with an expired EAD, the cap gap rule only provides work authorization through 9/30/12 (the rule fills the “gap” between an EAD that expires before 9/30/12 and 10/01/12, when the H-1B validity date would normally start). With processing time at 5 months or longer, H-1B cap gap cases filed during or after June would leave the employee with a gap in work authorization starting 10/01/12 until the H-1B is approved.
For H-1B extension cases filed timely (before one’s previous H-1B expired), the law provides a 240 day grace period. This grace period enables H-1B workers to continue working beyond their H-1B expiration date for up to 240 days, or until the H-1B extension is adjudicated, whichever comes sooner. Although the grace period should ensure there is no gap in work authorization for H-1B extension applicants, such applicants cannot apply for H-1B visas (stamp) until they receive their approval, so the ability to travel internationally and return to the US is hampered. This becomes an issue especially with the holiday season approaching.
Note: USCIS does offer Premium Processing to H-1B cases. For a fee of $1,225, USCIS will adjudicate PP cases in 15 calendar days.