H-1B Cap Update: To Address Courier Service Delivery Delays, USCIS Will Accept Refilings in Some Circumstances

 Some employers and their immigration counsel are experiencing courier service delivery delays for a number of FY 2015 H-1B cap cases, and are unable to confirm that these cases were received by a USCIS Service Center. 

USCIS is aware of the delivery problems. It has decided to temporarily relax its rules and allow affected employers to file a second petition for the same foreign beneficiary in limited circumstances, provided that the employer requests withdrawal of the first petition. Resubmissions must be delivered to USCIS by Monday, April 7, 2014. 

Resubmitting a Delayed or Undelivered Cap Case 

If delivery cannot be confirmed for an H-1B cap case, your organization should be prepared to act quickly and work with your Fragomen team to ensure that the case can be refiled by Monday, April 7. 

Your Fragomen team can prepare a new petition for your review and signature. The petition will need to be submitted with new fee checks, as well as an explanation for the resubmission and a certification of delayed delivery or non-delivery from the courier service. Your organization will also need to request withdrawal of the first cap petition in the cover letter accompanying the refiled case, in the event that the first case was received at USCIS despite non-confirmation by the courier service. 

What Happens After Resubmission? 

Because the situation remains fluid, USCIS has not fully explained how resubmissions will be handled. Your organization may receive filing receipts for both the first and second petitions, and may receive a withdrawal notice for the first petition. Your Fragomen team will work with your organization to track delivery of re-filed petitions, monitor receipt notices, and address any further issues. 

We are seeking further guidance from USCIS on the delivery problems and the disposition of re-filed petitions, including the impact on cap-gap benefits for F-1 students with expiring or expired OPT. We will issue further Client Alerts as we learn more. If you have any questions about cap case delivery issues or any H-1B cap matter, please contact your designated Fragomen professional.