As part of the H-1B process, employers have to determine whether an applicant is subject to the H-1B quota because this will determine when an applicant may be able to commence his/her H-1B employment with the employer. If the applicant is subject to the H-1B quota, the employer would have to file an H-1B petition on April 1 (with a requested H-1B start date of October 1) because for the past two fiscal years, the H-1B quota was met during the H-1B initial filing period from April 1 through April 7. However, if an applicant was already counted under the H-1B quota, he/she may not be subject to the H-1B quota and may more immediately be able to commence his/her employment with the employer.
In the past, when an applicant presented an H-1B approval notice which was filed by an H-1B non-Cap exempt organization, many employers assumed that the applicant had been counted against the H-1B quota and thus would not be subject again to the H-1B quota. However, within the past year, the USCIS' California Service Center (CSC) has been issuing Notices of Intent to Deny (NOID) or Requests for Evidence (RFE) when the applicant never previously "activated" the H-1B status. These applicants' H-1B status may not have been activated because their H-1B quota petition was withdrawn prior to the H-1B status becoming effective on October 1 or the applicant with a petition approved for consular processing never obtained an H-1B visa and entered the United States using the H-1B visa. Our office successfully responded to multiple NOIDs on this issue during the past year citing to both the Immigration and Nationality Act (INA) and the H-1B regulations. However, USCIS Headquarters has recently indicated to the American Immigration Lawyers Association (AILA) that the CSC's interpretation is accurate and that if an individual has not "activated" his/her H-1B status then the individual is still subject to the H-1B quota even though he/she had an H-1B quota subject petition previously approved on his/her behalf. Therefore, prior to filing a quota exempt H-1B petition due to the applicant having been previously counted under the H-1B quota, employers are going to have to determine whether an applicant actually "activated" his/her H-1B status after the approval of the H-1B quota petition. If the employer does not accurately assess whether the H-1B status was properly activated, the employer's H-1B quota exempt petition may be denied and the employer may lose its filing fees.