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USCIS announced on April 7 that both H-1B quotas for the 2009 fiscal year have been filled: both the 65,000 standard quota and the 20,000 advanced degree quota. USCIS received nearly 163,000 H-1B petitions subject to the FY 2009 H-1B cap. More than 31,200 of those petitions were for the advanced degree category. USCIS will apply a random selection process among these petitions to decide which petitions are selected for the quota.
So what should you do if you didn’t file your petition on time or don’t get chosen under the quota, and you still want to work legally in the U.S.? Here are some alternative options.
- OPT (Optional practical training) is a viable option if you hold a valid F-1 visa. OPT allows students to work in their field of study for a period of twelve months, followed by a two-month grace period during which they are not allowed to work but can remain in the U.S. legally. Therefore, if your OPT starts in August 2008, you can work until August 2009, and with the additional two-month grace period, you can then apply for the new cap of fiscal year 2010.
Furthermore, two recent policies from the Department of Homeland Security may end up increasing the length of OPT for some aliens. The first policy would extend the standard OPT length to 17 months, rather than 12 months, giving many aliens in OPT an extra shot at applying for an H-1B visa under the quota. With an OPT period of 17 months, plus a 2-month grace period, most OPT aliens would be able to apply for H-1B visas for two different fiscal years.
The second policy would allow some current OPT aliens in science, technology, math, and engineering fields to file for a 17-month extension to their OPT period, bringing the total length of the OPT period to 29 months for these aliens. Clearly, this would be highly beneficial, allowing aliens in OPT to apply for cap-subject H-1B visas at least twice.
Please note that these two policies have not yet gone into effect; first, they must be published in the Federal Register for a 60-day period of public comment. We will make sure to let you know about any updates regarding these policies.
More information about these policies is available here.
- Another potential avenue is to apply for an employment authorization document (EAD) based on a green card application, when an alien is under OPT rather than H-1B status.
If visa numbers are available for your I-140 application category (currently, they are available for all EB-1, and EB-2 for all chargeability areas except China and India), you can submit I-485 concurrently with your I-140 petition. You can file an EAD application at the same time.
The processing speed for EAD applications is fast right now, so it may be possible for you to obtain a valid EAD before your OPT expires. However, there are some uncertainties in this option: for example, if there is no progress in visa numbers for your country of birth, then you might not be able to file for an EAD.
Furthermore, please note: if you use an EAD, you’re deemed in I-485 pending status and lose your non-immigrant status. If your I-140 is denied by USCIS, your EAD is invalid immediately, and you may lose your legal status, too. So, you need to be aware of the potential risk of using an EAD before your I-140 application is approved.
- The O-1 visa is a useful category for aliens who have extraordinary ability or achievements in the field of science, art, education, business, or athletics. As such, it is an attractive alternative to H-1B for some outstanding researchers with research job offers from private companies.
- Some H-1B petitions are not counted against the cap of 65,000 visas. The following types of H-1B petitions are exempt from the cap:
- Extension of a current H-1B
- Petitions by multiple employers: A foreign worker can work simultaneously for different employers with different H-1B visas. When an employer files a second H-1B petition for a foreign worker who has had his or her first H-1B visa counted against the quota, the second petition is exempt from the cap. Even if the first job is exempt from the H-1B quota and the second job is subject to the H-1B quota, the petition for the second H-1B is still exempt from the H-1B quota.
- New H-1B petitions if a foreign worker has changed employers, and the former H-1B employer was subject to the cap
- Petitions where the employer is a higher-education institution or a relevant non-profit entity, a non-profit research organization, or a governmental research organization
- Petitions where the beneficiary is a physician who has received a J waiver under the Conrad 30 program
- Petitions where the beneficiary has been counted against the quota during the past six years and has not reached the six-year length (The new H-1B application is not subject to the H-1B quota, but it is subject to the six-year limit.)
- If none of the options above applies to your situation, you will have to change to or extend a non-working immigration status. For instance, you might enroll in another academic program to keep your F-1 status or change to some other status based on your spouse’s legal status, like H-4.
Please note that some of the strategies discussed in this article are tricky, with some risks and uncertainties. Therefore, you need to consult your attorney to determine which option is really best for you. Your attorney should be able to draw upon past experience and carefully evaluate your situation to give you the best possible chance of success.
Remember, there is always a solution. We at Zhang & Associates are optimistic about the future and will try to help you based on your individual qualifications and needs. For more information, you can email your CV and a description of your circumstances to Attorney Jerry Zhang at info@hooyou.com.
Zhang & Associates, PC.
Houston ∙ New York ∙ Chicago ∙ Austin
Tel：1-800-230-7040, 713-771-8433
Email: info@hooyou.com
website：http://www.hooyou.com
(04/15/2008)
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