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.

Kudos to all of you guys for starting and contributing to this very informative and all f-1 students subject of concern thread

i have a question regarding OPT

I got an associates degree in Radiology Technology on May 07 and now working in OPT ...i will be joining for Bachelors degree in Radiation Therapy next year and will finish it on Fall of '10...will i be eligible to work again on OPT after i get by Bachelors ?

Also, what should i keep in mind if my plan to is to work in H-1 after that ?

born to rule,

You'll get OPT after Bachelor's degree and again after Master's if your plan to do so.

And about your H1, you still have 4 years to think about that. Moreover, the immigration reform bill, which now depends on the next presidential election, will change all H1and green card policies.

PallaghareAntareji

Very good information. About myself, I am a PHD student, I heard that there are no H1b caps for PHDs, so they should not be worried about caps and appropriate time for applying OPT. They can file for H1B any time too. Is it true? Please let me know so that I can plan for my graduation accordingly. Thanks

nice discussion !!! I need help too ..

I am in CPT and working for a company fulltime .. I dont know when to apply for the H1-B .. it is been 6 months I am working here and I can work for another 20 months until I finish my Master's..

Can anyone tell me when shall I start to think about H1-B. I dont know my company will sponsor for H1-B or not ? Shall I keep on working this company or start finding a job that sponsors H1_B.

Thanks In advance

jibatma ji,

It's not that a Phd student need not worry about the H1-B cap at all as it depends on which type of organization you plan to join.

The regulation says that H1-B workers, if employed at a university, affiliated non-profit entity, non-profit research organizations or government research organizations are not subject to annual H1B cap.

So, Phd students or for that matter ANYONE who plans to join any of the above mentioned organizations, need not worry about the H1-B cap and can file the petition anytime. Thanks.

Please keep the info coming guys. Thanx a lot for all the great stuff.

Sparrow

Palla Ghare,
Thanks for informative thread.

Please suggest the possible consequenses assuming the followings are my situation:
1) Graduated in may 20, 2007
2) OPT started from june 12. 2007
3) My student visa is valid until August, 2008
4) Currently working and company will sponsor H1 B under master's quota in April 1,2008
5) I dont want to go back to school, nor for GMAT/GRE classes.
6) No problem going to Nepal during GAP period.

So my questions are:
1) Is my OPT valid until August 12 (including GRACE time) or I have already consumed part of grace time since I graduated in May 20, In other words, I graduated in May 20 and start date in OPT is June 12. I had heard OPT countdown begins right from the day you graduated.

2) Will I have problem since my passport visa(F1) is going to get over by first week of august, 2008? I know I am no longer student, so there is no importance of visa stamped in my passport, but still...

3) What are the risk factors getting H1 B visa stamped in Nepal while returning back to US to get back to work in oct 1? Is it equally risky as student visa?

I will shoot more questions after you answer these.

Thanks

Prastav,

1) That's what we were discussing in previous postings as to whether you can still use 16 months in total or only 14 months. I know that until the end of 2005, you could use 60 days both before and after OPT.

Now in your case if you can use 16 months, your grace period will expire around August 8-10. If you can use only 14 months, your grace period will end around July 17-19. So even in the wost case, it's just a matter of around 20 days more which I think won't be a problem for you if you are willing to go to Nepal. You can spend few more days back home.

2) Yeah it's not your visa stamp that determines your status, it's your I-94 card. You are in status only until the date mentioned in your I-94 card, which should say "Until F1" which means you are out of status as soon as your grace period ends even if your visa stamp has not yet expired.

Getting H1 stamp should not be as difficult as getting an F1 visa especially when you have an American degree. People get H1 stamps all the time from Canada and Mexico so from Nepal, it should be even more easy as they prefer people applying in their home country.

(Posted by Loverboye on a separate thread)

Hi Friends,

My opt got over on May 20. I had applied for h1b on last april. I joined master's to bridge gap until oct 1. I hadn't sent my new i20 for master's when i applied for h1b coz' i was in opt that time. I got approval notice on June with change in status from Oct 1. But today, Oct 1, when i went to my international student office, my SEVIS doesn't show the change in status. I am wondering when will my sevis system shows change in status. Is is usual? I am wondering whether I am in F1 or H1b right now because my SEVIS doesn't reflect change in status.

please advise. you suggest will a great help for me.

- Loverboye


Loverboye,

Your's seems to be a very unusual case as COS is rarely approved when there is a gap between OPT and H1 start date. But in your case, it seems that they did approve COS (may be by mistake) and issued your new I-94. But whatever the case, if they did, your status should be H1 starting Oct 1.

SEVIS on the other hand, is just a system to keep track of international students and scholars (F1, J1, M1 only) and has nothing to do with H1 or other visa holders. It doesn't reflect the change of status to other visa categories either. Furthermore, it has to be activated or deactivated by a school official and doesn't just change by itself.

From Oct 1, your record in SEVIS should be considered terminated as you are already on H1 and no longer a student. Once you mention about your COS to H1, your school should deactivate your SEVIS records immediately. I don't know why your school didn't tell you that they'll now deactivate your SEVIS records. May be you should talk to your international advisor once again.

Pallaghare,

How did ya get the total count of Masters and PhD students separately graduating every year and specially 2007(Spring/Summer/Fall)? Your conjecture is filled with probability. Do ya agree? 'Coz I dont believe even 5000 PhD US graduates every year. The Masters quota of 2007 reached the cap 'coz some of the students got their provisional degree to apply by Spring 07 April 2nd week or so.

Thanks.

You guys all seem to have degrees and jobs.. suggest me something guys.. i'm graduating with finance masters in 2008.. i am completely clueless on job market.. where should i look for jobs? how do i ask them to sponsor me? how how how?? please tell me.. are you all into IT and engeneering field?? do business majors also get jobs and sponsorships???

PallaGhare,
I am also one of those recent graduates who will have the cap gap this coming summer. I will be applying for H1-B in April 2008. But my company is also processing my labor certification right now, although I have not signed a single document yet.. Since, I am still in F1 (OPT) status, do I violate the "intent" of F1 status by going this path of Labor Certification? Shouldn't I be "not guilty" of violating any "intent" until June 2008 when I will still be in F1 (OPT), regardless of what I do with my labor certification since I haven't changed my status?

I am confused, and my lawyer hasn't really cleared my worries either.

Technically you should be able to file for PERM/GC while on OPT. Applying for OPT on the otherhand while LC is pending would have been risky as F1 (OPT) has a pure non-immigrant intent. As you are already on OPT, filing for LC and later on for H1B which is a dual intent status shouldn't be a problem. Only concern will be maintaining your status during the Cap Gap and questions you might face during your visa interview should you need to go out of US for your H1B stamping. It's better to consult your lawyer and discuss all the scenarios.

Thanks PallaGhare.

But I am still confused with this "intent" thing though. It seems to me that I am thinking about changing my fkin "intent" by starting Labor certification , but on the other hand approval of LC alone does not change my non-immigrant status (so the lawyer says), and if it doesn't change my status it shouldn't change my intent either. I would like to think I am "safe" here, but who knows.

Hey Guys !!!

I need your help. I am going to Mexico for stamping my H-1 Visa but the required document says emplyee verification letter. What is that ???

Is it a letter issued by Company. If yes than what is the format for that letter. I do not want to go to nepal and risk incase. My petition had been approved as i was a may 06 graduate and than to be in status i change to f-2 as a dependent, now I am going to Mexico for stamp. I am the first one for whom my company is sponsoring H-1 and i really dont what kinda letter is needed at embassy.

Could you please be kind and send me the format . Just a rough format how to write and what should be included on it. Pleaseeeeeeeeeeeeeeee

arbiter,

GC process is long and will go well beyond your OPT and H1B process. Even after your LC is approved, you need to maintain your non-immigrant status. You'll be continuing on F1 or H1 or any of the non-immigrant status until your I-485 is approved. So a petition for GC alone doesn't change your non-immigrant status, yeah though filing for GC while on F1 might mean that you are changing your intent, it neither hurts your GC nor your F1 is jeopardized. Also once your H1B is approved, you will be on a dual intent status which is definitely better than being on F1 for a GC process.

The problem I see about the intent is for your F1 status in future just in case your H1 is not approved. In that case, you continue on F1 and become eligible for OPT again some day. Now if you apply for OPT while your GC petition is still pending, your application for OPT might be denied on the basis of intent as you have already expressed your intent for settling permanently in the US. Also, you might not be able go out of US and return on F1 while any of your GC petitions is pending unless you have your Advance Parole and EAD. Besides that I don't see any problem for now.

 

 

Siwani,

I'll give you a general idea.

Letter addressed to: "U.S Department of State, Non-immigrant Visa Processing Unit".

Subject could be : Request for H1B Visa Stamp (Request of "employer" on behalf of "employee")

First paragraph:

Should mention that you employer is submitting the letter in your support as a request for H1B stamp. Should mention your job title and that they have received the Approval notice (Receipt #...) of your H1B petition on your behalf from USCIS.

The Petitioner:

Could be a few paragraphs about your company.

Terms of Employment:

Should mention your job title, period (3 years) and that it is a temporary position. Should mention your salary and that it is the prevailing wage for similar positions and will not adversely affect the working conditions of similarly employed U.S workers.

As for your interview, take every document you have with you for you never know what they'll ask for. Carry a copy of your LCA submitted to USCIS along with your H1B petition which is the first thing they ask for after your Approval notice. Other documents they might ask for include proof of your F1 status (all I20s), your transcripts and all documents related to your F2 status, pay stubs if you ever worked on OPT, W2 forms if any, proof of your residence in the US, bank statements etc. Keep all related phone nos.handy (your University registrar's office, land lord, bank etc). Documents showing your maintaining legal status while in the US are the most important ones.

H1B visa stamping is considered easy in Canada and Mexico for US degree holders and is rarely denied if you have all the supporting documents. Just in case, bear in mind that if your visa is denied, you'll have to go back to Nepal directly and it's always wise to prepare for the worst.

Good Luck!

PallaghareAntare,

I am really impressed with your responses regarding this issue. Thank you very much. You rock Pallaghare you rock! If you don't mind, I need  your suggestion:

I am working at a university as a faculty on OPT that expires on mid July '08.  I just started my GC processing.   I am thinking of applying for H1B if I don't get my EAD by May '08. I was informed that I can apply for H1B at any time since it is a non profit organization. I just wonder if it is true. Besides this, my wife is also on OPT that expires on August. She works at the same university as a part time faculty so they don't sponsor her H1B. Our concern is her status after August' 08 if we dont receive our GC by then. Do you have any suggestion regarding this issue?  

Not at all RajaHarischandra,

Your case seems pretty straightforward. Being on H1B is the best possible situation when you start GC processing. As you need to be maintaining a valid non-immigrant status until your I-485 is approved, H1B is the best back up because of it's dual intent.  Even if there is any complications with your GC processing, you'll be safe and working because of your H1B.

A non profit organization like your University can apply for your H1B anytime and you can start working as soon as it is approved. You can also apply for your wife's dependent visa H4, along with your H1B petition. Her OPT is considered expired as soon as her H4 is approved and she has to stop working. Though she might miss about 2 months of her OPT assuming your H1 starts mid July,  there won't be any concerns about her status at least. As soon as her GC EAD arrives, she can start working again.

April - July is when USCIS is busiest and it'll take 3-4 months to get a decision on your H1B petition during those months. If you file on May, I doubt that you'll get a decision by the time your OPT expires. It's better to file under premium processing. Though it'll cost you $1000 more, you'll get the decision within 15 days of your receipt notice.  

Hope that helps.