In our ongoing effort to keep international students informed about important and relevant issues in the world of immigration, our attorney friend and guest-blogger, Laurie Woog, who has a practice devoted to immigration and naturalization law, provides us with her thoughts and advice on some breaking news with respect to the H1B cap. Read on to find out more.
Many international students wish to stay and work in the U.S. after graduation. One of the most common ways to do this is to have an employer sponsor the student for an H1b visa, used for temporary, professional occupations such as doctor, lawyer, architect, teacher, accountant, software engineer, etc. It is very important for international students to understand how the H1b system works and when to apply, in order to maximize the potential for obtaining this status in the U.S.
On April 7, the United States Citizenship and Immigration Services (USCIS) announced that the infamous H1b “cap” or quota for Fiscal Year (FY) 2016 has been reached already. USCIS will now utilize a computer-driven “lottery” process to randomly select the petitions needed to meet the cap. USCIS has not yet announced when the random selection process will take place. If you are a student on Optional Practical Training (OPT) – permission to work after completing a degree program – or attending university with a pending H1b petition, keep in mind:
- It may be several more weeks at a minimum before you know whether your case was selected in the lottery or not;
- Even if it is selected, the case will still have to be adjudicated and may be denied or approved.
To understand the importance of timing in the H1b process, let’s focus on a few common questions and answers.
What is this H1B “cap”?
There is an annual limit on the number of new visas available for H1B workers. The cap or limit is currently set at 65,000 with 20,000 additional visa numbers for those who have earned masters’ or higher degrees in the U.S. The visas are effective at the start of the new fiscal year, on October 1. H1b petitions can be submitted no more than 6 months in advance of that date (April 1). This means that MOST years, USCIS receives more applications than the quota around April 1. USCIS then announces that the “cap” or quota has been reached and it will randomly choose petitions to process from that group or pile. If the H1B cap is not reached, then the USCIS will continue to accept H1B cap cases until the quota is reached.
However, in the past several years, USCIS has received more than enough petitions by the end of the fifth business day in April. This means that, effectively, NO H-1b petitions received after that date will even be considered for processing and the employer and employee will have to wait another year entirely to apply!
What if I have not graduated college yet on April 1? When should my employer or potential employer submit an H1b petition on my behalf?
If you have a bachelor’s degree and are in a graduate program, the employer can file the H1b petition on April 1 if the position does not require the graduate degree. If you are still completing your bachelor’s degree and do not have equivalent work experience on April 1, you would not be able to apply (in most cases) on that date. Instead, you can work after graduation on OPT for one year. STEM field graduates can then extend their OPT for another 18 months. However, given the cap and the uncertainty of the lottery system, it is extremely important that an international student with a job offer apply for an H1b visa at the very first opportunity on April 1 after receiving OPT.
Are all job offers or employers subject to the cap or quota?
No. If you work at a university, a government research organization, or a nonprofit entity that is clearly related to or affiliated with an institution of higher education, then you don’t need to worry about the H1b quota. Therefore, the employer can apply at any time during the year.
What happens if my period of OPT expires and I don’t have any H1b or other visa yet to work in the U.S.?
It is extremely important to keep or “maintain” lawful status in the U.S. to be able to obtain a temporary visa classification or green card, in most cases. If you cannot file an H1B cap case before you complete the 60 day “grace” period after your degree or OPT, you should try to maintain status by enrolling in another degree program or changing to another temporary visa category such as B2 or H-4, if eligible. In certain cases you may have to leave the U.S. during processing or before approval.
What is the moral of the story? F1 students in school or on OPT should absolutely plan ahead to have an employer file an H1b petition on April 1 whenever possible.
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