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.

PGA,

Thank you very much for your suggestion. I think this is one of the most informative threads I have seen on Sajha. One more question-will I and my wife get EAD at the same time ?

RH,

Not necessarily. You as the primary applicant or your wife, anyone can get your EAD first and the other's application status might show "received and pending". Usually the pending EAD will follow in a few weeks.

 

Thanks for the info. It was really helpful. :)

PGA! thank you for sharing information. Do you have any idea how long it normally takes to get PERM approved for a university professor ?

pallghare..
are you some lawyer or attorney? I am really really impressed with your understanding on this subject..u rock all the way ....

PallaGhareAntare Jee,
Can someone graduating in May apply under the Master's quota in April with a letter from University that he/she will be completing all the requirements within a month?
Any idea about that?

RH,

"Special handling" PERM applications are processed much faster than the regular PERM applications. LC special handling applications should normally be processed within 2-4 weeks from the time that they are filed unlike regular PERM applications which normally take 4 to 12 weeks. Bear in mind that processing time is subject to change and if DOL decides to audit in either case, it might take longer. 

 

HowardRoark,

For any classification, be it regular or Master's, one must be fully qualified on the date of filing the petition. This means that you should have your diploma in hand when you file. You can submit the letter from your school confirming completion of all coursework except for the actual degree along with the petition BUT there are more chances that it will be denied.

Thanks Sa54

PGA,  thank you very much.  God bless you!!!

 Hi PGA

 I have finished all the requirement for my MS degree in this jan. but i will get my official transcript only in may. i already had a job.so can my company file my H1 under masters quota? what will be the chances of denial ?

Thanks in Advance.

 

I declare Pallaghare Antare  *Sajha Person of the Year*

Respek!!

me too davechappelle

Give some Advice, Please

 

HI Pallaghare Bro

 

Thanks for ur suggestion regarding H1 and OPT one thing I dont understand is that I am Master graduated student and I will be graduating  first week of February  2008, Do we need to submit our Master graduation certificate while we filing  H1 , It take at least two month to get that graduation certificate and by April 2008 I have to file that. So could you make me clear about that. 

Thanks

me here, HowardRoark, chahari,

As I've replied before, your company can surely file with a letter from your department that you have completed all the requirements and only the final transcript is pending. USCIS will either A) Send you a Request for Evidence (RFE) and you'll have to submit the diploma Or B) USCIS will deny the petition as you did not qualify at the time of filing.

I definitely have heard about cases being filed like that but don't have an idea of how many are denied or accepted. It's all luck I guess. Hoping that the Master's quota doesn't get exhausted in one day in 2008 (of which I'm not 100% sure), I personally feel that one has better chances than the regular quota random draw. A good immigration lawyer can definitely give you an idea of the success rate.

Also FYI, once you file the petition, USCIS doesnot accept (unless requested) any additional document even if your situation changes such as a Diploma or a new I-20 before the decision is made as the I-129 petition is supposed to be complete when filed. So once filed, unless requested, you cannot yourself send your Diploma even after you have it.

Thanks PGA

 nepaliguyinusa,

You can apply if you have completed all your requirements and only transcript is pending but there is risk of denial. You should have your diploma when you file. 

Previous posts might give you some idea.

 

Hey Guys,

Now is the time. There is exactly one month left to file your H1-B petition and I hope you are or will be ready to file on April 1.

Remember that you have only ONE day if you are filing under regular quota. If you are filing under Master’s quota, you might have few days more but don’t count on that. In 2006, Master’s quota had exhausted on July 26. Last year, it was gone by April 30.

So get your application packet ready to be delivered to USCIS on April 1. Not a day before, not a day after.

For those of you who are still trying to get a job, I wish you all the best.

thats right PGA, now is the time to act.  for those who already have job and ready to file, make sure it reaches at USCIS office on day 1, april 1st that is.  for those who are in interview process or have not found a job yet, you guys got one month to manage all this, well not even a month.  you need a offer letter, your employer needs to talk with lawyer and lawyer need to prepare document for you.  so, i would say 3 weeks.  according to some indian sites, first day applications can reach up tp 160000 this year ( i forgot the source), which is possible looking at the trend we had last year.  remember there are so many indian firms who are sponsoring thousands of candidates.  so, it can not be ruled out. 

Think about getting a new I-20 NOW, before filing your H1B petition if you have Cap Gap.

Many of you, whose OPT expires this summer (May-July), have you thought about the gap that you’ll have even if your H1B is approved?

Your H1 will be effective starting October 1. So once your OPT expires, you will be considered out of status if you are still in the country. You have 60 day grace period after your OPT expiry to either a) Prepare to leave the Country or b) Change your status

(If your OPT expires on or after August 1 though, you are good and will be in status)

If your OPT expires during May-July and you want to utilize full term of your OPT and make some money, here are your options once your OPT expires:

a) Leave the Country

Go to Nepal and relax.  Spend time with your family and friends. You never know when you’ll get time to visit Nepal once you start working.

Get your H1B visa and enter US in September with your new H1-B I-94 card. You can enter 10 days prior to your H1-B effective date.

b) Change/Extend your status

The best way is to transfer to another school to extend your F1 and get a new I-20. Forget about the B1 or other visas. F1 is the easiest way out.

I have a new I-20. Now what?

Get your H1B visa stamp and new I-94 card once your H1B petition is approved. (Understand that when you file your H1 petition with your OPT expiring within July 31, though your H1 petition will be approved, your new I-94 card won’t be issued and you cannot work without it.)

- Go to Nepal, Canada or Mexico. Go through the H1 visa interview, get your visa stamp at the consulate, get your I-94 at the POE and enter on or after September 22.

- If going out of US is not an option, file H1-B amendment petition with your new I-20 requesting Change of Status (COS) from F1 to H1. Remember that you can do this only after your H1-B petition has been approved and your approval notice (I-797) has been issued. It might take few months before you’ll get the decision.

Once your amendment petition is approved, you will be issued your new H1 I-94 card and can start working on H1 status. You will not need the H1B stamp at this time but the next time you go out of US, you need to get your H1-B stamp to re-enter US.

 

What if my OPT expires before May?

If your OPT expires within March and April or even May, I suggest you to forget about your OPT and get that new I-20 NOW and file your H1 petition with your new I-20. You’ll lose your OPT and spend few grands but believe me, you’ll do yourself a favor. It’s better than losing sleep later thinking about going out of US for visa stamp or filing amendment petition as there are chances of denial in both those cases.

I know it is difficult to transfer and get a new I-20 within this one month. I don’t know about joining KAPLAN but I surely know there are English language institutes in most of the major cities that are authorized to issue I-20s to international students. If possible, get a I-20 for 8 months NOW which will cover you until October and file your H1 petition with your new I20.

Can multiple/duplicate applications be filed to increase my chances in the lottery?

a)Two or more employers each file for you at the same time.

Yes

Just make sure not to mislead or misinform any of the employers about the other petition.  

b) One employer files two petitions for you.

Though there is no specific law to disallow this practice, it might be considered an exploitation of the system. Few employers did that last year.

 Can I file under both Master’s and regular quota?

Right now it seems that you can BUT USCIS is drafting and can come up with a new regulation to address duplicate filing any day now. This new regulation is expected to address all multiple filing issues.