Beginning July 1, 2014 we are now eligible to file new H-1 visa applications at US consulates for those employees and prospective employees recently selected under this year’s H-1 lottery. This applies to those who have been out of the US throughout the H-1 petition process with CIS or those in the US who have an approved petition but for some reason could or will not be able to change status in the US on October 1, 2014 when the new H-1s are available.
The US Department of State’s operating instructions allow consulates to accept visa applications up to 90 days before the applicant’s ‘beginning employment status”. Since the new H-1s start on October 1 the applications can be filed at any time after July 1. See, 9 FAM 41.53 N8.4(b). In addition, the H-1 visa holder can then enter the US ten days in advance, beginning September 22, 2014, but if admitted early the visa holder cannot begin H-1 employment until October 1.
Please note this does not apply to those who have approved H-1 petitions AND a change of status effective October 1, unless the applicant wishes to remain out of the US until September 22 and does not need to work until October 1. In other words if you have valid OPT until October 1 or after, or have the cap gap extension, you may not leave the US and obtain an H-1 visa and return to the US until September 22 and cannot work until October 1. In this situation it would be much better to hold off travel until the actual change of status occurs on October 1 and then travel, obtain the H-1 visa and return.
As always if you have any questions, please do not hesitate to contact us.