Hi all,
I have seen a lot of Sajha users interested in H1-B and OPT issues lately and would like to share a few things I know. This might give you an idea of what to expect after you graduate. You might not fully understand everything and might have to do some research on your own, if you are new to the subject.

(This is infact just for general information based on my understanding of the issues and should not be taken as legal advice. You need to consult your International advisor or a lawyer before making any decisions.)

H1-B Visa

1) How many? When can I file and When it starts?
There are 65,000 Regular (undergraduate) and 20,000 Master’s H1-B visas available every year.

H1-B petition can be filed by your employer on your behalf starting the first working day of April until the quota is exhausted. Starting 2008 however, you might have only ONE day to file your H1 petition, irrespective of whether you are filing under Regular or Master’s quota. If your petition is not filed that day, you’ll have to wait for another one year.

H1-B, even after it is approved, is effective only from October 1 of the same year. This means you cannot work until Oct 1 and also that, you have to be in another valid visa status until then.

2) Will it be approved? What are the odds?
Every year, H1 visas are getting exhausted much faster than the previous year. Now it has become more like a DV lottery. Even if you file on time, your petition needs to be selected with a random drawing for processing.

In 2007, the regular quota of 65,000 was gone in a single day. In fact USCIS received more than 120,000 petitions on the first two days and had to do a random draw. The Master’s quota of 20,000 however lasted for about 4 weeks. In 2006, the Master’s quota had lasted for almost 4 months until the last week of July. Based on this trend, I strongly feel that in 2008, the Master’s quota will also get exhausted the very first day you can file your petition. Even worse, if they receive more than 20,000 petitions, you’ll have to get lucky in the random draw.

So, you are not safe until you get the receipt notice.

3) What is H1-B CAP Gap?
It is the gap between the end of your OPT Grace period and the first day your H1 starts which is October 1. You are considered out of status during this period if you are still in the US, which you’d like to avoid. If there is a gap, you need to either extend your F1 to cover the gap by joining school or go out of the country, get the H1 stamp and come back in October.

If you get a new I-20 in this period, you can either file a H1 amendment petition based on your new I-20 and wait for it to be approved (might take few months) while remaining in the US or go out of US (Nepal, Canada, Mexico) around the end of September, get the H1 stamp and come back.

CAP Gap can be avoided if:

- Fall graduates file their H1 petition on the first available filing date.
-Spring Graduates somehow start their OPT on or after August 2 and file for H1 next year.

In all other cases, I think there will be a gap no matter how small the period is. So it is wise to be prepared beforehand and plan accordingly.

4) When is the best time to graduate if I plan to file for H1? Fall or Spring?

If you want to avoid the CAP Gap:

- Fall graduation (in between December and February) is best BUT, you need to get hired as soon as you graduate and be ready to file your H1 in April. If you miss filing, you need to wait one more year and there will be a CAP Gap.

- Spring graduation is good ONLY if you can start your OPT on or after August 2 so that your OPT Grace period ends exactly on or after September 30 next year (This of course involves a lot of calculation, you need to graduate on or after a particular day in June, may be June 3, so is not a viable option)

In all other cases, if you graduate in Spring or if you miss to file your H1 after graduating in Fall, there will be a CAP Gap no matter how small.

So I’d say, start looking for jobs well in advance (at least 6 months) of your graduation if you want to graduate in Fall and go for it. If not, there is no need to panic as you can always join school for a semester or go to Nepal for some time to cover the CAP Gap. You’ll have plenty of time to prepare and plan for this.

5) What is Premium Processing? Does it guarantee H1 approval?
You pay $1000 extra and get the decision within 15 days of your receipt notice, which otherwise usually takes about 3-4 months. It is just to expedite the decision and has nothing to do with the approval. It also doesn’t mean that you can start working right away if your H1 is approved later. You still need to wait until Oct 1 to work just like others with normal processing.

Premium processing can be particularly helpful to those who have a CAP Gap after OPT as they can plan ahead whether to get a new I-20 or leave US once their OPT expires.


Optional Practical Training (OPT)

1) When can I start? When will it end?
OPT is granted for one year and can be started any day within 60 days after you graduate. You ALSO get a 60 days of Grace period after your OPT ends, no matter when your OPT starts. During this 60 day grace period, you’ll still be on valid F1 status but cannot work. You can either change status to H1 or other visas during this period or leave the country.

2) How long will I be in proper status during OPT?
The period of OPT is 14 months once it starts. So if you start your OPT right after you graduate, you’ll have 14 months. If you start on the latest possible day which is the 60th day after you graduate, you have 16 months. In all cases, you can work only during the period of 12 months between your OPT start and end dates.

3) When is the right time to start OPT?
It depends on your future plans or motives like applying for H1 visa during OPT , continuing your studies or may be just extending your stay etc.

If you are planning to apply for H1 later on, all the above discussed factors related to H1 will be crucial in your decision. In any case, try to make the most of this one year you’ve got. Once your OPT starts, remember that the clock is ticking and no matter whether you get a job or not, OPT will end right after one year. So the key is to Plan and Prepare.


Common misconceptions about H1 and OPT:

a) Approval of H1 petition also means Change of Status (COS) from F1 to H1

Wrong. Approval of H1 petition and Change of Status (COS) are two different things. Usually when you file H1, you file for COS from F1 to H1 also. But it depends whether both or only H1 is approved.

- If there is no H1 CAP Gap, USCIS will approve both H1 and COS which means that there will be the new I-94 card attached to your approval notice. You can remain in the US and on Oct 1, your F1 changes to H1. You just need to inform your school so that they can terminate your F1.

- If there is a CAP Gap though, only H1 will be approved (which just means that you are eligible for H1 visa) and there will be no I-94 attached. In this situation, you need to go out of US once your OPT Grace period ends, get the H1 visa stamp and get your new I-94 card at the port of entry on your way back to the US.

b) I can work during 60 day Grace period of OPT.
Wrong. You need to stop working as soon as your OPT ends. You can either change status or leave US during these 60 days.

c) I can work as soon as H1 is approved.
Wrong. Your H1 is effective only from October 1 and you cannot work until then.

d) I can continue working even after my OPT ends once my H1 is filed.
Wrong. You need to stop working and wait until your H1 starts in October.

e) Even if my OPT ends, once my H1 is filed, I will remain in proper status until Oct 1.
Right. Only if you have no CAP Gap.
Wrong. If there is a CAP Gap. You need to get a new I-20 or leave the country by the end of Grace period.

Hope you'll find the information helpful.

Dear PGA,

That is really a good stuff... Thank you PGA.


I'm having some problem regarding my OPT and H1-B, and hope u can suggest me. My bad-luck, I happen to receive "incomplete document" letter from USCIS for my OPT application. I have submitted those document but I am afraid like it was mention that it will take 14 to 60 days to issue OPT card. With best luck, it could come before April, otherwise its goanna come after April 1st, meaning late for applying H1-B.

Can I apply for H1-B with my trans-cripts and the receipt letter of my application for OPT from USCIS?

Also, I don't have SSN which I can get only once I have OPT card in my hand. Is SSN also required to apply for H1-B?

 

dangol.

 

Could anyone tell me if a copy of I-20 is required to file H1B? My lawyer never asked me for a copy , he did ask for my OPT card though.I have applied for B2 to cover my gap. Is that the reason he didnt ask for my I-20? I am just guessing that they would still require a copy of I-20. ANYBODY please let me know.

silence43,

You can apply with your current I-20 but as you'll have the gap, USCIS will approve your H1 but not the I-94. If you apply with a new I-20 now that covers the gap, you'll get your I-94 also and will be in H1 status starting Oct 1.

If you apply with your current I-20, USCIS won't issue your I-94.

To get your I-94, you either a) Need to go out of US before your OPT grace period expires, apply for H1 stamp and come back in the last week of September OR b) Join ESL, Kaplan or a new school in July (before OPT grace period expires) and file H1 amendment petition with the new I-20. The amendment petition can be filed only after your original H1 petition is approved.

If you are applying with your old I-20, file under Premium processing so that you get the H1 decision and get enough time to transfer before grace period expires. 

dangol,

Including your current OPT I-20 that states the OPT start and end dates should be sufficient for now. I don't think including the receipt for OPT is also necessary as that might just create confusion.

If they need the copy of your OPT EAD card or your SSN or any other document, they'll send you Request for Further Evidence (RFE). By that time hopefully you'll have all your documents in hand. So don't worry about that now and file with your OPT I-20. 

 

Hey PGA

I have a query . I am going to graduate as Dental Surgeon soon and defintalley i do have  to give some US licensing exam before i can practice but i am sure i can go through it. Lot of clinics are offering me the job  with good signing bonus so there is no problem of JOB. But i am worrid about H1. Is there ay kind of medical or helath related quota for H1?

Ur reply will be appreciated.

N72 

Hey PGA

I have a query . I am going to graduate as Dental Surgeon soon and defintalley i do have  to give some US licensing exam before i can practice but i am sure i can go through it. Lot of clinics are offering me the job  with good signing bonus so there is no problem of JOB. But i am worrid about H1. Is there ay kind of medical or helath related quota for H1?

Ur reply will be appreciated.

N72 

My OPT ends on June '08. For the CAP GAP What should I do?

Just join some cheap college or some ELS courses That provides valid 1-20   OR

Do I have to get CPT/ OPT along with 1-20...

Because Some english language institute in NYC (mainly Zoni)  issues I-20 for the Internationaaal students. So I thought, this one is easy and cheap way

Hi PGA,

"OPT is granted for one year and can be started any day within 60 days after you graduate. You ALSO get a 60 days of Grace period after your OPT ends, no matter when your OPT starts. During this 60 day grace period, you’ll still be on valid F1 status but cannot work. You can either change status to H1 or other visas during this period or leave the country. "

Here is my situation and a question:

Graduating Date: May 10, 2008

Opt start Date: June 25, 2008 (month and a half later from the date of graduation)

Opt expiry Date: June 24, 2009

Now, my question is:

Since I am starting opt after 45 days from my graduation date, don't you think 45 out of 60 days grace time will be already cosumed in my situation above?

Do I really get another 60 days grace time starting from the expiry date of my opt, that is until august 24, 2009?

I was told that opt time (14 months-including grace) starts right from the day you graduate. What I was told is totally different than what you aresaying here, and this is creating more confusion.

Please clear the confusion. Waiting for your response...

Hey PGA,
I think u r the only one who answers questions.I had asked if anybody could answer whether a copy of I-20 is also needed to file H1B.My lawyer says its not needed and he just asked for my OPT. Is it because of the I-94 on the passport that substitutes the need for it. Please let me know.

H-1B Petition Supporting Documents:

1. Copy of offer of employment 
2. Copy of applicant's Resume, including a list of publications (if applicable)
3. Proof that applicant has attained required degree
   • Ex: Copy of diploma/transcript that indicates the major field of study
4. Copy of applicant's passport identification page, including any extension pages
5. Copy of any previous US immigration documents (if applicable)
   • Ex: I-797 Approval Notices, I-20s, DS-2019s, EAD card
6. Copy of applicant's current I-94 card (if applicable)
7. Copy of applicant's visa (if applicable)
8. Letter from current employer verifying employment (if applicable)

(Source: http://www.indiana.edu/~intlserv/scholars/h-1b/dept_info/h1b_fees.php)

Guys, since we are discussing H1, I have my own question, please answer me if you know about it. Will really appreciate. Here is my story.

I graduated last December (Dec 07) with a bachelor's degree in Engineering. I started my OPT from January 16 and ends on Jan 15 2009. I got a job offer from a company on Jan last week. I started working on Feb 1st week. The company said that they will only pay the training fee $1500 and rest I have to pay by my self. I contacted a lawyer and started the paperwork, later the lawyer said that the company has to pay everything but later let me pay attorney fee, Fraud fee. Today the lawyer contacted me saying that my income is lower than the previlage wage (my income is early 50K), he is saying my income is 2 thousand short than previlage wage. How can that be? My questions:
1) what is the income need to file H1?
2) Can I pay everything else beside training fee?
3) What is the lawyer won't proceed my case (need to file next monday)?
 Help Help Help plz sajha.

14 or 16 months?

What I understand is that you get a grace period of 60 days after your OPT expires no matter when you start your OPT.

I've checked a lot of University web sites and found that almost all say that you get 60 days grace period after your OPT expires which is not counted against the initial 60 days you get. 

But I've also found a few sites that say that you get only 14 months in total including the 60 day grace period. If your DSO believes in this, you might get into trouble if you need to transfer once your OPT expires and your DSO tells you that you are already out of status. So try to confirm in writing (email) what your DSO thinks before filing OPT application.

Personally, I believe that you can still use 16 months.

Few University sites that say you still get the 60 days after OPT no matter when it started:

http://www.virginia.edu/iso/issp/f1/graceperiod.html

http://www.wsuoiss.wayne.edu/sections/news_and_announcements/faqs

http://en.allexperts.com/q/Immigration-Issues-344/OPT-grace-period.htm

http://www.viu.edu/current-students/opt.html

http://oisf.njit.edu/docs/opt-faqs.pdf  

www.isso.iastate.edu/OPT%20Presentation.ppt

I found one that says you get only 14 months:
http://www.middlebury.edu/NR/rdonlyres/FC642780-2358-4F59-813D-1B88C5928ED8/0/PostcompletionOPTguidelines.pdf
 

When I started this thread, user bibas100 had doubts about this 16 months thing. Recently he had started another thread (http://www.sajha.com/sajha/html/OpenThread.cfm?forum=55&ThreadID=56209) that says:

"I have seen this question come up again and again and I would like to share this information to everyone concerned.

If you are graduating in May 08, get your OPT starting date sometime in July 08.  You get to choose your starting date. You get 60 days to start your OPT after graduation and take full advantage of it. Also, you will get 60 day grace period after your OPT is over. This means that you will in fact get to stay legally for like  16 months after your graduation. So, you may not have to leave work for a long period of time if you get your H1B in April 09."

I believe bibas must have done enough research before asserting that one can actually get 16 months considering his earlier reservation.

if things have not changed recently, then it is 16 months, that is you can start your OPT within 60 days of your course completion and stay 60 days more after your OPT expires.  so, maximum time one can use is 16 months, however, 2 months is before period of OPT. 

USCIS Announces Interim Rule on H-1B Visas
Rule Modifies Selection Process and Prohibits Multiple Filings

WASHINGTON ─ U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee.  These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. 

This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need.   The interim final rule becomes effective upon publication in the Federal Register.

Last August, President Bush announced that the Administration would be undertaking a series of immigration and border security reforms.  The changes to the H-1B filing process under this rule are an important part of that initiative.

On April 1, 2008, employers may file petitions requesting H-1B workers for fiscal year 2009 employment starting on October 1, 2008.   For fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers.  Additionally, the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap.  Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap.  Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.

This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period.  If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit.  Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit. 

The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits.  Those filing fees will not be returned.

(source: www.uscis.gov)

USCIS Announces Extended H-1B Filing Period

On March 20, 2008, the CIS published to the Federal Register a change to the H1B filing process that will extend the H1B filing window.

Pursuant to this change, the CIS will accept new H1B petitions for five business days, starting April 1st. If the cap is reached during these five days, all applications received during this extended window will be entered into a random selection process (i.e., a lottery). If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit.

I'm graduating in June and am looking for an IT company in Irving, TX to do my OPT. Can anybody help me? I'm a MBA grad and don't have any IT background.

17-Month Extension of Optional Practical Training for Certain Highly Skilled Foreign Students

Release Date: April 4, 2008

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

The U.S. Department of Homeland Security released today an interim final rule extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.

“This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy,” said Homeland Security Secretary Michael Chertoff. “By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens.”

Another aspect of the rule responds to the situation in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this problem by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

To be eligible for an OPT extension, an F-1 non-immigrant student must:

• Currently be participating in a 12-month period of approved post-completion OPT;
• Have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;
• Be working for a U.S. employer in a job directly related to the student’s major area of study;
• Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program. E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly-hired employees; and
• Properly maintain F-1 status.

The interim final rule and additional information on the H-1B program is available at www.dhs.gov.

(Source: www.dhs.gov)

 

thanks PallaGhareAntare....ur help in immigration is awesome as usual.

does the 17 moths extention of OPT applicabl to MBA graduates?

does the 17 moths extention of OPT applicabl to MBA graduates?