H1B Visa Program

Lots of information on the H-1B visa program, particularly since the April 1st opening of the quota approaches.  This will be of particular interest to students who are in, or will be applying for optional practical training with the hope of securing a work employment visa with a sponsoring institution or company.

Benefits of Optional Practical Training  (OPT)

* Your career in the US after graduation should ALWAYS start with Optional Practical Training (OPT).
* You must apply before you complete all requirements for degree.
* You get one year for each higher degree you complete.
* OPT ideally acts as a bridge between your studies and the workplace.
* It allows you to “get your foot in the door” with a US employer without any paperwork on their part: vitally important.
* It allows you to try more than one job if you wish.
* While in some cases it may be possible to proceed directly to H1B or even permanent residence without OPT, this is usually inadvisable.

What is H1B Visa

* It is the principal immigration status available for persons temporarily working in professional level jobs (“specialty occupations”) in the US.
* It generally requires that the employee have at least a four year degree or equivalent AND that the position require a minimum of a bachelor’s degree.
* You may be able to apply for the H1B while still in school if undergrad degree directly relevant to offered employment.

H1B Eligibility & Limitations

* Employment is limited to the employer(s) who petition(s) for the student. May hold more than one H1B at same time. H1B may be part time.
* Employment is generally limited to six years with ALL employers (unless employment-based permanent residence begun by end of 5th year).
* Employment must be directly related to degree program.
* H1B’s are limited by strict fiscal year quotas.
* The H1B beneficiary may have “dual intent”.

H1B Employer Obligations

* Must agree to employ beneficiary as set out in the petition (no fraud!).
* Must need the services of the student (no uncles with corner stores!).
* Must agree to pay higher of actual or prevailing wage.
* Actual wage: wage paid to other similarly employed and similarly qualified workers at same worksite.
* Prevailing wage: weighted mean or median wages for similar positions in geographic area of employment.
* Basically, this means that a competitive wage must be offered.
* Must be no strike or lockout.
* Must notify other workers of terms of job (10 day posting or letter to union).
* Must agree to pay certain fees to USCIS:
* ACWIA fee: $1500; $750 if 25 or few FT employees.
* Exemptions: K-12, higher ed, affiliated entities, teaching hospitals, non profit research organizations and government research organizations.
* Anti fraud fee: $500. No one exempt.
* Must agree to employ H1B only in geographic location(s) set out in labor condition application.
* Must agree to pay return transportation to country of nationality if H1B terminated (but not enforceable).

How to File H1B

* First is Labor Condition Application. Filed electronically with Department of Labor.
* Next is H1B Petition, together with LCA, evidence of qualifications, and description of job, filed at either VT or CA Regional Service Center of USCIS, depending on place of employment.
* If employee maintaining lawful status in US, status is changed to H1B, along with family members.
* If outside US, or traveling following change of status, must obtain H1B visa at US consulate.
* Processing of the H generally takes two to three months. Fifteen day premium processing is available for $1K; also guarantees easier communication with USCIS via phone/email.
* Once approved, the H employee may “port” to a new employer once that employer files a new petition. Approval of new petition not necessary. BEWARE: porting if you have not been counted against the quota.

H1B Visa Quota

Currently H1B’s are limited to about 78,789. This is the H1B quota 2008.
* ~58,789 for those with no US earned Master’s.
* 20,000 for those with US earned Master’s or higher.
* ~6,800 reserved for H1B1 for citizens of Chile, Singapore (unused numbers “fall back” during first 45 days of new FY which is 589 for this year 2008).

* FY 2007 non-Master’s quota of approx. 60K exhausted 5/26/06—seven weeks!
* FY 2007 20K US Master’s quota exhausted 7/26/06—15 weeks!
* Petition can be made for FY 2008 numbers beginning 4/1/07, for employment to begin on or after 10/1/07.

Thus, as soon as practicable after beginning OPT/AT employment, employer MUST begin H1B petitioning process.
Should begin paperwork no later than 3/1/07. Quotas likely to be exhausted even faster this year—some are predicting exhaustion on April 2!

* FY 2008 regular quota exhausted April 3. All cases received April 2 and 3 will be placed in a lottery. About one in four chance of selection.
* May be a few cases left for US earned Master’s or higher. About 7K left on April 4.
* This means most people will be locked out of H until October 1, 2008.
* Earliest application now for regular quota: April 1, 2008, for work to start October 1.

H1B Quota Exceptions

* Exempt from the quota are persons already counted against it within past six years, as well as persons who work in higher ed and affiliated entities, non profit research and government research organizations, and physicians granted a waiver of the two year home residence requirement for J’s. Note that most govt. entities and non profits are NOT exempt from quotas.

* If you were an H employee for an quota-exempt employer you were not counted against the quota, unless you began H status prior to October 20, 2000.

OPT Grace Period

* Major problem arises when OPT or AT will end prior to the beginning of H1B petition approval, plus the student’s (60 day) or exchange visitor’s (30 day) grace period.
* In years prior, immigration generally published “gap rule” allowing J’s and F’s to maintain status during this period, remain in the US, but not work.
* For several years: NO GAP RULE.

H1B Quota Example
“Priya’s F 1 OPT began May 15, 2006 and ends May 14, 2007. She finds a suitable job and the company petitions for her H1B on April 1, 2007. Since the FY 07 (10/1/06 to 9/30/07) for US Master’s recipients ran out on 7/25/06, her employer asks for a visa number from the new FY 08 quota for work beginning 10/1/07.”

But Priya thus will have a gap in status from 7/14/07 (end of 60 day grace period) until 10/1/07.

What’s she to do?
* Apply for H while still in school if BS degree relevant.
* CAN’T WORK after 5/14/07!
* Postpone OPT start date til 7/14? (still a small gap)
* Apply for change of status to B 2? (logistics issues)
* Apply for change of status to dependant (if married or under 21)
* Apply for admission to a new program and new I 20 for Fall 2007? (money and intent issues)
* Leave the US? (all sorts of issues)
* Go back in time and alter her graduation date?

Graduate in December(Spring) or Graduate in May (Fall)

Your Graduation Date and H1B Cycle
* Current H1B quota problems make May graduation very difficult, August  less so and December ideal. Why?
* May 15, 2007: OPT until following May 14; no H1B until October 1, 2007. GAP!
* August 15: OPT until following August 14; no H1B until October 1, 2007. POSSIBLE GAP!
* December 15: OPT until following December 14; student applies for H1B 4/1/07; gets it 10/1/07. NO GAP!

Immigration H1B Laws & United States Senate

* Included in comprehensive immigration legislation which  passed the Senate last year was a provision to recapture 30K H1B numbers from each year beginning in 1991.
* Fees would increase for such recaptured numbers.
* House did not pass this measure because of opposition to legalizing undocumented workers. H provision may pass as stand-alone bill some time in the spring.
* Appears that Democratic control of Congress greatly increases likelihood of passage: but, labor groups oppose

Check Out the Position and Employer

* Many beginning positions in business do not require a degree: eg, sales, management trainee slots.
* Many entry level jobs pay partly or solely on commission. Commission or sales bonuses generally cannot be included in the wage computation.
* Beware of “make work” or make believe jobs from friends or relatives.  Pay stubs, W 2’s will be required when you go abroad for visa issuance, apply for future immigration benefits!
* Also beware of fly-by-night consulting companies which may “bench” you until they place you in a job.
* Does the job require the application of theoretical and practical knowledge typically acquired in a relevant four year degree program?
* Has the employer consistently required a minimum of a Bachelor’s in particular major(s) for position? Or is the requirement simply an employer preference? Or is the employer simply making up the requirement to get you an H1B?
* What are industry standards for this type of job? Check ads on internet, DOL’s Occupational Outlook Handbook.
Is the salary commensurate with a professional-level position?

H1B Sponsorship

Do Your Homework
* Before the interview: Research the company. If officers or other employees are listed in literature or on website, see if there are obvious immigrants among high ranking personnel.
* Try to identify, beforehand if possible, who will be conducting your interview and his/her function in company.

Pay Attention
* When meeting the interviewer, ask for his or her card, if available, and look at it carefully. Note the person’s title, and what that implies about his or her function.
* You will find that functional managers and others within your area of expertise may have a very different point of view than persons with a recruiting or human resources function.

Who’s Across the Table?
* Persons who actually manage or carry out work in your area are usually most concerned with the applicant’s skills, drive, and ability to really get the job done.
* Recruiters and HR people often are more concerned with process, rules, and “filling holes” in the company.
* If the interviewer is recruiter/HR, try to find out who you’d actually be working for or who runs the office/division where the opening exists.
* In this way, if you are rebuffed, you may be able to contact the manager directly, or use networking to do so, to try to overcome the interviewer’s objections to hiring you.  This is particularly the case if told “We don’t sponsor for work visas.”

Don’t Take “No” for an Answer

* If confronted with “we don’t sponsor”, after you identify the function of the individual, then try to find out WHY.
* Sometimes the individual doesn’t know, the policy was established by someone “who’s no longer with the company”, etc.
* If you decide to bypass the interviewer, and try to “go inside” the company, it’s very important to know the “why” of the “no sponsor” rule.

H1B Employer

Employers’ Many Misconceptions
* Employer believes that it must recruit, prove American workers not available, or prove that student is exceptional, special, or unique to sponsor.
* FALSE: No recruitment required. Special qualities not relevant. Two ten day postings are for notification only.
* Employer thinks the process “will get them in trouble with immigration” (not unless they have otherwise shady practices or lie in the paperwork).
* Employer doesn’t want to reveal financial information to USCIS (IRS has already reviewed this information; USCIS not a tax enforcement agency; neither you nor attorney need see information; can be provided in sealed envelope).
* Employer thinks they have to pay legal fees (not unless this would push employee below required wage).
* Employer thinks “it’s too much trouble, paperwork” (a few signatures, a ten day posting, no advertising; attorney can simplify process).
* Employer worries about posting the employee’s wage (post a range!).
* Employer feels they receive enough resumes from US workers; no need to apply for a foreigner (didn’t they ever hear of the immigrant work ethic?; try to identify immigrants within the company).
* Employer worries that sponsorship may constitute contract of employment (no, but if they’re worried, do a memo of understanding both sign).
* Employer worries that employee is later going to ask for PR and leave the company –they’ve been burned before (Sign a “one way” contract; employee has to repay legal fees if leaves before a certain date; but employer retains right to “employ at will”).

H1b Fees

* Employer doesn’t want to pay ACWIA and fraud fees and wants employee to pay them.
* There are penalties for employee payment of ACWIA fee.
* No apparent penalty for employee paying fraud fee.
* These fees are less than what the employer would pay a recruiter.

Let’s Make a Deal
* Employer doesn’t want to pay required wage and wants to have “side deal” with employee to pay less or pay part in commissions/bonuses.
* There are severe penalties, including back pay, fines up to $5000 per incident, and prohibition from petitioning for any employment based nonimmigrant/immigrant for up to two years for this practice.
* Pay stubs, W 2’s are often requested at visa interviews, and in connection with applications for immigration benefits.

Other work immigration options besides H1B

* H1B1 visa for Chile, Singapore: very similar to normal H1B, except granted in one year increments, requires residence abroad (no dual intent).
* E 3 for Australian citizens; again very similar to H1B; minimum Bachelor’s, dual intent ok; spouses may work.
* H-3 trainee. 2 yrs max; training must be for job abroad.
* J-1 trainee. 18 mo. max; looser than H 3, but many J sponsors will not sponsor if you are in US.
* E 1/E 2: if your country of nationality has an trader/investor treaty with US, investment of as little as 50K in a job-creating business can mean a visa for life, work permit for spouse.
* L 1A/L 1B: if you were employed by a company abroad for at least a year before coming to the US, and they wish to employ you in US; work permit for spouse.
* R-1: possible if job offer has a significant religious component.
* B-1 business visitor: only possible if employed outside US, no remuneration in US except expenses, and product/service is made/rendered outside US. VERY LIMITED UTILITY.

There are many other nonimmigrant visa classifications, some of which may be appropriate to recent graduates in rare situations. These should be explored with an experienced immigration attorney.
If your employer does not have an immigration attorney, choose with care! Do your research well.

This information is provided by AskStudent for the convenience of its international student enquirers.  We are not able, or licensed to offer professional legal advice regarding your future immigration status in the United States.   Please therefore direct these questions to a professional immigration attorney.