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Help! I am in F-1 Student Status and I Have My Heart Set on an H-1B Visa

With less than a month before April 1, the date when employers can file new H-1B petitions for new international employees in “specialty occupations” such as IT and engineering, attorneys at our firm receive many phone calls and emails from international students. These calls begin with, “Can you do my H-1B visa” and are quickly followed by many more related questions. Below are some of the common questions we hear from international students and some answers that we provide to bring clarity to students and their employers.

  1. 1. Question: Can a student apply for an H-1B on his/her own?

Answer: No, the H-1B is an employer-sponsored visa. It is the responsibility of the employer to file the petition for the prospective employee. It is the employer who makes all the decisions involved in the H-1B petition, signs all the forms, and pays the filing fees and legal fees associated with the H-1B. Attorneys in this process represent the H-1B petitioner, which is the employer.

  1. 2. Question: What exactly is an H-1B?

Answer: An H-1B is a non-immigrant status that U.S. employers may obtain for their international personnel to temporarily employ foreign nationals in specialty occupations. Specialty occupations are jobs that require “theoretical & practical application of a body of highly specialized knowledge in fields of human endeavor.” Some examples would be information technology, architecture, or engineering.

For more information on H-1Bs, read this article.

  1. 3. Question: If a student has a bachelor’s degree, does that make him/her eligible for H-1B status?

Answer: It depends. The job itself must require a bachelor’s degree or higher in a specialized field, such as computer science, engineering, math, statistics, accounting, teaching, etc. Additionally, the student must have that degree to be eligible for H-1B status. For example, if an employer offers an electrical engineering position to a foreign graduate that requires a degree in electrical engineering to a foreign graduate, and that graduate has the required degree in electrical engineering, the student may be eligible for an H-1B. In contrast, if the employer offers a retail sales position that requires no particular degree to a foreign graduate with a bachelor degree, the fact that the student has a bachelor’s degree does make the graduate eligible for an H-1B.

  1. 4. Question: If a student does not have a bachelor’s degree, can they still be eligible for H-1B status?

Answer: They may or may not be eligible. For a student to be employed in a specialty occupation, the student must meet one of four things:

  1. The student must have a U.S. bachelor or higher degree required by the specialty occupation from an accredited college or university;

  1. The student must hold a foreign degree determined to be equivalent to a U.S. Bachelor or higher degree required by the specialty occupation from an accredited college or university;

  1. The student must hold an unrestricted State license, registration, or certification, which authorizes the student to fully practice the specialty occupation and be able to work in that specialty in the state of their intended employment (we do not see this one very often); or

  1. The student must have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

  1. 5. Question: What if the student’s bachelor degree is from a country other than the United States?

Answer: If the student’s degree is from a country other than the United States, it may or may not be okay. It is OK if the foreign degree is equivalent to a United States bachelor’s degree or higher degree required by the specialty occupation from an accredited college or university. If a foreign bachelor degree is accepted as an equivalent by a U.S. university or college, normally USCIS will agree that it is equivalent to a U.S. bachelor degree. Good evidence of this is a transcript from a U.S. university or college listing the foreign bachelor degree as previous education on it. However, if the foreign worker did not continue his or her education in the U.S., the foreign degree will need to be evaluated for equivalency. Most trusted evaluations are done by university professors or registrars. The H-1B regulation also allows for an evaluation to be performed by a “reliable credentials evaluation service which specializes in evaluating foreign education credentials.” This should be taken with a word of caution, because not every evaluation service is deemed “reliable” by USCIS. It is a good idea to ask the employer’s attorney if they can share a list of evaluation services that based on previously filed petitions, USCIS has previously accepted as “reliable”.

  1. 6. Question: When should the student’s employer file for his/her H-1B?

Answer: Today being the beginning of March, my answer is as soon as possible! For fiscal year 2015, employers may begin filing their H-1B petitions on April 1, 2014. This is important because there is a shortage of H-1B visa numbers, therefore, April 1 could also be the last day employers can file based on the H-1B cap. Some employers may actually think they have until April 1 to worry about filing the H-1B, but, in fact, because it takes time for DOL to approve the Labor Condition Application and there is a Posted Notice Period, waiting until April 1 without having gone through the necessary steps means the employer will miss the deadline for this fiscal year. Based on our firm’s practice, we encourage employers who are our clients to begin the process at least two months before the filing date to ensure that they have an approved LCA and the petition is ready for filing on April 1.

For more information, click on over here.

  1. 7. Question: What is the H-1B cap? Will the student get put into an “H-1B lottery?”

Answer: USCIS has a statutory H-1B cap of 65,000 H-1B petitions for each fiscal year. If USCIS receives more petitions than the cap, they use a computer-generated random selection process (commonly known as the “H-1B lottery”) to select 65,000 petitions (minus petition numbers claimed by nationals of Chile and Singapore under H-1B1 program) for the general category and an additional 20,000 under the advanced degree cap. This limited amount of H-1B numbers available illustrates the importance of employers starting the H-1B process early and getting the petition filed.

  1. 8. Question: If the student has a U.S. master’s degree, does that help his/her chances?

Answer: Yes. In addition to the 65,000 general category, there are 20,000 numbers set aside for employees who have obtained a United States master’s degree or higher. This is known as the “Master’s cap.” If the employer’s petition filed for a student with a U.S. Master’s degree or higher was not selected under the master’s cap, it would become part of the random selection process for the general cap of 65,000.

  1. 9. Question: What happens if the cap is reached, and the employer’s petition for the foreign worker does not get selected?

Answer: USCIS will reject and return the petition and filing fees to the employer. If the foreign graduate has continuous legal status, such as he or she is in school in F-1 status, the employer may file a new petition the following year. This is why it is extremely important for the student to think through the H-1B process and prepare a back-up option ahead of time. Some alternatives for a student whose employer’s petition was rejected would be:

  1. Apply for STEM based OPT

  2. Go back to school and apply for CPT

10. Question: When can a foreign graduate begin employment with the company filing for his/her H-1B?

Answer: If USCIS approved the employer’s petition for the foreign graduate’s first H-1B, then the earliest he or she can start working for the employer is October 1. However, the student could hold another status that allows him/her to work for the employer at an earlier start date. For example, before graduation, F-1 students may apply for optional practical training (OPT) based work authorization that may allow them to be able to work for the employer sooner.

For more information on H-1B start dates, check out these articles:

Part 1: Prospective Worker Residing Outside the United States

Part 2: An H-1B Worker Intends to Transfer to a Different Employer

Part 3: The Cap-Gap Solution for F-1 (foreign national students) who seek H-1B status

11. Question: How long can a foreign worker be in H-1B status?

Answer: The employer tells USCIS in the H-1B petition how long they intend to employ the student/how long they are requesting the H-1B status. USCIS will normally grant H-1B status for this period of time, but no longer than three years at a time. Unless an exception applies, a foreign worker can stay in the United States for a maximum of six years in H-1B status. At the expiration of the 6 year maximum, the foreign worker must leave the United States for at least one year before the employer may file another H-1B petition for the worker. Because of the H-1B shortage, normally the period abroad is not one, but two years. This is because the last H-1B often expires in October, the worker will need to spend a year abroad; and then the employer needs to wait until April to file, and if the new petition is approved, the new worker cannot begin until October of the second year.

There are two exceptions to this rule:

  1. Under American Competitiveness in the 21st Century Act (AC21) Section 104(c), the employer may apply for an extension of the H-1B visa status if the worker is a beneficiary of an approved I-140 petition and cannot file the green card application because the worker’s priority date is not current. In this instance, the employer can get H-1B extensions in 3 year increments.

  1. Under AC21 Section 106(a), the employer may apply for an extension of the H-1B visa if:

  1. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the foreign worker to obtain status as an employment based immigrant, or

  2. 365 days or more have passed since the filing of an I-140 employment based immigrant petition.

12. Question: Can the student pay the H-1B fees for the employer or reimburse the employer later?

Answer: No, it is the employer’s responsibility to pay the fees associated with preparation and filing of the H-1B petition. Under the DOL regulation, the filing fees, attorney’s fees, or any expenses for services related to the preparation and filing of the petition cannot be paid by the foreign worker.

13. Question: Can a foreign worker switch jobs when he/she is in H-1B status?

Answer: H-1B approval is specific to each employer. A foreign worker can only switch jobs if the new/prospective employer files an entirely new H-1B petition benefitting the foreign worker. This needs to be done prior to the expiration of the first H-1B or before the current H-1B employment is terminated, whichever is first. However, the foreign worker may begin working for the new employer as soon as the new employer files the H-1B petition with USCIS and receives a receipt. It is important to note a couple of things when it comes to starting employment with the employer receiving only a receipt- First, this is only true for a change in employer. Second, in our practice, we normally do not advocate this. If the petition is denied, then the foreign worker will be out of status.

An article detailing the start date for an H-1B employee switching employers can be found here.

14. Question: How long will it take for a student to get H-1B status?

Answer: The length of time depends on how busy USCIS officers are, and if the employer receives a Request For Evidence (RFE) or a Notice of Intent to Deny (NOID), which could add additional weeks or months to the time it takes to get H-1B status. Generally, USCIS tries to complete H-1B adjudication for April 1 filed H-1Bs by October 1.

15. Question: What about a student’s spouse and children? Do they get status if the student gets an H-1B?

Answer: If a student is granted H-1B status, their spouse and unmarried children under the age of 21 may be eligible for H-4 dependent status. If the student and the student’s spouse and children are in the United States in legal status when the student’s employer files the H-1B petition, the student’s spouse and children may be eligible to file a Form I-539 for change of status to H-4 together with the employer’s H-1B petition. However, if the student’s spouse and children are outside the United States, then they can apply for H-4 visas at a U.S. Consulate once the employer’s H-1B petition has been approved.

16. Question: Can a student’s spouse and children work on H-4 status?

Answer: No, H-4 status does not give them a legal right to be employed in the United States.

17. Question: What role does a business immigration attorney play in my H-1B process?

Answer: H-1B regulations and the government’s attitude toward H-1B adjudication makes the H-1B process complex and unpredictable. Employers who need to have their H-1Bs petitions prepared well and filed on time often hire experienced corporate immigration attorneys to be responsible for their H-1B petition. One of the most important roles of an attorney is early on in the H-1B process when the attorney helps determine whether or the position offered to the student and the student’s credentials would qualify for an H-1B. This article, Job Description: The Most Important Part of the H-1B Preparation Process, outlines the importance of determining the position and credentials of the prospective employee.

In our corporate immigration practice, we have our clients and potential H-1B candidates complete a two-part checklist so that we can best aid them through the H-1B process:

Part I of Mdivani H-1B Potential Client Checklist (To be completed by the employer)

Part II of Mdivani H-1B Potential Client Checklist (To be completed by the potential H-1B candidate)

This is just a small sample of the questions we receive on a daily basis from students who are interested in H-1B visas. We hope you find this helpful!

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