Jian Joe Zhou, Attorney at Law
Overview of the H-1B situation
With the arrival of a new year, it becomes time to consider the issues surrounding the H-1B application cycle for the fiscal year 2008-2009.
H-1B is a non-immigrant visa/status category that allows U.S. employers to seek out skilled foreign workers for temporary employment. H-1B petitions are typically granted for a period of three years, and may be renewed up to six years, with a few exceptions. In addition, H-1B visa holders may bring their immediate family members to the United States on H-4 visas, but H-4 visa holders may not accept employment here. For more general information about H-1B visas, please click here to browse the H-1B section at our website.
Barring any unforeseen legislative or administrative changes, the annual cap on H-1B admissions will be set at 65,000 workers for the 2008-2009 fiscal year starting October 1, 2008. Of this amount, 1,400 spots and 5,400 spots are reserved for Chilean and Singaporean nationals, respectively. There are also an additional 20,000 H-1B spots reserved for foreign nationals holding a master’s degree or higher from a U.S. university. In practice, there will be considerably more than 85,000 new H-1B petitions accepted this year because employees of universities and non-profit research facilities to not count toward the cap.
Last year, 123,480 applications were filed on April 2 and April 3, 2007, the first two days it was possible to file for a 2008 H-1B visa. Naturally, only about half of the applicants were selected for processing. The additional 20,000 advanced degree visas were used up by April 30, 2007.
Predictions for this year’s H-1B rush
We believe that the demand for H-1B visas will equal or exceed the very high demand shown last year. There are a number of reasons for this:
- Many applicants who were not selected for the H-1B quota last year will probably want to try again this year.
- Demand for high-skill jobs continues to grow, particularly in the H-1B intensive IT sector.
- Reports indicate that a large number of graduating students are choosing to forgo part of their 1-year Optional Practical Training period and are applying for H-1B visas this year.
It is almost certain that the USCIS will receive far more than 65,000 H-1B applications on April 1, 2008, the first day available to file. By law, they must pool all of the applications that arrive on the first two days and choose 65,000 via a computerized random selection process. In this situation, obtaining an H-1B visa requires a certain amount of luck, but employers/petitioners and alien beneficiaries can help their case by ensuring that it is complete and filed on time. Likewise, applicants for one of the 20,000 advanced degree spots are advised to file on April 1 or as soon as possible thereafter to ensure that they are allocated the limited quota.
Maintaining status for the purposes of an H-1B application
As mentioned above, H-1B applications must be filed on April 1 or 2, 2008. However, the approved H-1B will not take effect until October 1, 2008. This gap can be problematic for applicants whose status will expire between April and October.
In order to change to H-1B status in the U.S., the law requires that an alien beneficiary be in a valid non-immigrant legal status on September 30. There must be proof of this in the H-1B petition package, which is filed on April 1. If there is no proof that the applicant will be in legal status on September 30, he/she will have to leave the United States and apply for an H-1B visa with the U.S. consulate and then re-enter the U.S. by using the H-1B visa. While H-1B visa applications are usually granted, it can be quite costly to travel abroad merely to change status. In addition, visa applications may in some cases be delayed due to security concerns, even with a valid H-1B approval notice. This is particularly true for workers in nationally sensitive fields such as defense or biochemistry. In some cases, H-1B visa applications may be denied if the information offered at the US consulate does not match the approved H-1B documents or for any one of many other reasons at the discretion of the visa officer.
A common example: Student with an expiring OPT
Students whose OPT will expire between April 1, 2008 and August 1, 2008 are perhaps the most common type of applicant to face the timing problem outlined in the paragraph above. In fact, most student’s OPT will expire between April and July because that time period coincides with the graduation dates of most universities, and subsequently, the beginning of 1-year OPT status.
Holders are allowed a 60-day “grace period” of legal status after the expiration of their OPT. Thus, an OPT that expires on July August 1 will effectively be good until September 30. Applicants with OPTs that expire between April 1 and August 1 will not be in a valid non-immigrant status on September 30. Therefore, a request for change of status to H-1B on October 1 will not be granted. In some instances, USCIS officers may use their discretion to grant a change of status even there is a gap between the expiration date of previous status and the starting date of the new H-1B.
EXAMPLE
Consider the example of Sally, whose F-1 OPT will expire on July 15, 2008. With the 60-day grace period, Sally has legal status until September 15, 2008. She will be out of legal status two weeks before her H-1B takes effect. On April 1, when Sally files her H-1B application, she will not be able to show that she will be in status on September 30. Sally has two options:
- She can stay in the US until September 15 and then travel to her home country where she will apply for an H-1B visa to re-enter the U.S. This will usually work, but it is expensive. In addition, any delays in processing the visa may prevent Sally from beginning her U.S. work on time.
- In order to change status in the U.S., she can abandon her current F-1 OPT and maintain legal status by enrolling in another F-1 program or change to another status, such as to B-2, in order to keep her in legal status until October 1. Enrolling in another F-1 program is a process that can be handled by the school, does not require filing with the USCIS, and is a relatively quick, practical option. However, Sally must file for her new status before April 1 in order to include the evidence of her continued status on her H-1B application. According to USCIS regulations, once Sally obtains her new I-20 by enrolling in the new F-1 program, her old F-1 program will end and her OPT will become invalid for the remaining approved period. She will not be able to work from April 1 until October 1, which will result in thousands of dollars of lost wages.
Conclusion
The H-1B visa situation for fiscal year 2008-2009 is problematic. Demand for H-1B visas will exceed supply by a factor of two or three times. In these conditions, applicants can only file on time (April 1, 2008) and cross their fingers for good luck.
In addition, the timing issues caused by premature OPT expiration and the need to show valid status on September 30, 2008 can add another burden to the already-stressful H-1B situation. Zhang and Associates, PC is available to answer your individual H-1B questions and to help you prepare a filing strategy that will maximize your chances for obtaining this sought-after visa at a minimum cost.
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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nation-wide in all aspects of U.S immigration laws. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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(01/07/2008)
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