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.

H1b Cap

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:

1. It may be several more weeks at a minimum before you know whether your case will be selected in the lottery or not.
2. 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 they reach the quota.

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. Only 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.
 
Laurie Woog
The Woog Law Office, LLC
Practice Devoted to Immigration and Naturalization Law

Blog post brought to you by:
Andrea Aronson
College Admissions Consultant 
Westfield, NJ

The post International Student Immigration Issues: H1b Quota Met as of April 7th and Lessons Learned first appeared on College Admission Counseling.

The H-1B Visa

The H-1b visa classification is a temporary visa. It allows US companies to employ foreign workers in a “specialty occupation” (one that requires a bachelor’s degree or higher, or the equivalent, as the minimum educational standard for entry into the profession). These professions include fields such as architecture, engineering, mathematics, science, and certain business fields. Students who are nearing completion of their degrees or the end of an optional practical training period (OPT) often seek H-1b status in order to work in the U.S.

The CAP

H1b visas are subject to annual numerical limits, or “the cap.” Current immigration law allows for a total of 85,000 new H-1B visas to be made available each government fiscal year. This number includes 65,000 new H-1B visas issued for workers in professional or specialty occupation positions. And an additional 20,000 visas available for those with an advanced degree from a US academic institution. Once the “cap” is reached, USCIS will not accept any new petitions until six months prior to the start of the next fiscal year.

If you didn’t already apply for an H-1b visa this year, unfortunately, you are stuck until next year. U.S. Citizenship and Immigration Services (USCIS) recently announced that it reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS also received more than 20,000 H-1B petitions filed for those who are exempt from the cap under the advanced degree exception. The visa numbers went quickly this year, basically between April 1 and April 5.

On April 7, 2013, USCIS used a random selection process (commonly known as a “lottery”) to select petitions needed to meet the quotas. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees.  Remember, if you are applying for a position at a university or non-profit associated with a university. The position is exempt from the quota and you can apply at any time.

What can you do if you missed this cut off?

Re-enroll in school, leave the U.S. temporarily, apply next year, perhaps change to another visa category, or consult an attorney or your school counselor about your options. Remember to stay in status at all times. And watch the news for any reform of the immigration laws!

Laurie Woog
The Woog Law Office, LLC
Practice Devoted to Immigration and Naturalization Law
www.wooglaw.com
 
Blog post brought to you by:
Andrea Aronson
Great College Advice

The post International Student Immigration Issues: Beware of the H-1B cap! first appeared on College Admission Counseling.

Many international students come to the United States for an undergraduate or graduate degree. And then happily go home to their friends and family. In fact, obtaining a student visa is contingent on demonstrating a true intent to return abroad at the conclusion of one’s studies. However, inevitably, some students change plans after living in the United States for a while. And decide to work or relocate here. While this may seem like a simple process, under current immigration law it is extremely difficult for many foreign students to remain in the U.S. for more than a year after graduation.

There are two main obstacles:

First, there is a durational limit of 6 years in the H-b visa category. The temporary classification is appropriate for most foreign professionals and college graduates. Also, H-1b employees are considered “out of status” as soon as they are terminated or leave their jobs without new, sponsored employment. And many workers in this situation have to leave the United States.

Second, obtaining legal permanent residence (a green card) is no easy feat. Although students from India or China may outnumber those from Turkey or Ghana by the thousands. Even the hundreds of thousands. Each country is allotted the same number of immigrant visas. Thus, under current processing times, an H-1b visa holder from India with a master’s degree in computer science will not be eligible to file her application for a green card until 9 years after her employer initiates the process. This lengthy waiting period, coupled with the difficulty of remaining in valid H-1b or other temporary status in the interim, compels many foreign students to contribute their intellectual capital to economies abroad.

As President Obama stated in a January address on immigration, “Right now, there are brilliant students from all over the world sitting in classrooms at our top universities. They’re earning degrees in the fields of the future, like engineering and computer science. But once they finish school, once they earn that diploma, there’s a good chance they’ll have to leave our country.”

In recent years, Congress has failed to act on proposals to counteract this situation. 2013 may be different. A bipartisan group of Senators laid out a comprehensive immigration reform package alongside President Obama’s principles of reform.  What has changed? Republicans acknowledge the need for Latino support at the polls. Business and labor leaders are looking for common ground.  Employers and political leaders recognize the economic benefits of streamlining immigration procedures to retain foreign talent in the U.S., particularly graduates in the science, technology, engineering and math (“STEM”) fields. Without such measures, the U.S. risks a “reverse brain drain” or talent outflow.

Many current proposals will affect international students studying in the U.S. The Senate framework would award a green card to immigrants who earn U.S. graduate degrees in STEM fields, a measure the President supports. Some senators have introduced the Immigration Innovation Act of 2013. Which proposes to raise the cap on H-1b visas from 65,000 to 115,000 as well as remove the quota on visas for science and technology workers with advanced degrees. Such programs can co-exist with measures to increase the effectiveness of STEM education in the U.S. for all. The Senate blueprint also envisions reducing backlogs in family and employment-based visa categories, which will reduce uncertainty and allow more mobility in the workplace.

On the theory that immigration reform can spur economic progress and provide jobs, rather than reduce the number of jobs available to Americans, which some opponents fear, President Obama has proposed increasing visa numbers. Creating “start-up” visas for entrepreneurs, and creating a new visa category for highly skilled immigrants to work in federal laboratories on national security programs if they pass a background check.

Sometimes international students are unable to remain in the United States because of immigration-related family issues. Currently, the foreign spouse of a U.S. citizen cannot obtain a green card based on a same-sex marriage. President Obama has indicated his willingness to allow such benefits. Many H-1b visa holders opt to leave the United States because their foreign spouses, in H-4 status, cannot work here. (See Matt Richtel, Tech Recruiting Clashes with Immigration Rules, N.Y. Times, Apr.12, 2009.)Therefore, the United States Citizenship and Immigration Service (USCIS) proposes changing its rules to permit some of these spouses (H-4) to seek employment.

The DREAM Act might be enacted as part of comprehensive immigration reform or as a separate measure. This legislation would offer a path to citizenship for undocumented immigrants who were brought to the United States as children. Contingent on a clean record, graduation from high school in the U.S., and attendance in college or military service. The Obama administration’s current “Deferred Action” program. Or DACA, does benefit some undocumented students who want to attend college. But does not provide a permanent path to residence at this time.

In sum, international students applying for admission to a U.S. college, or currently here on a student or temporary visa, should continue to watch and read the news to learn about developments in the immigration field or consult a qualified attorney for more information.

Laurie Woog
The Woog Law Office, LLC
Practice Devoted to Immigration and Naturalization Law
www.wooglaw.com
 
Blog post brought to you by:
Andrea Aronson
College Admissions Specialist 
Westfield, NJ

The post International Student Immigration Issues #8: The Latest Immigration Proposals Explained first appeared on College Admission Counseling.