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Contents
Preface
What is H-1B VISA?
• What is USCIS
• What is OPT
• What is LCA
• What is NOID
• What If It Is a Denial
• H-1B Approved
H-1B Approved, Then What
• Consular Processing
• What Not to Do
• PERM
• I-140
• I-485
I was preparing documents of from prior H-1Bs for the upcoming H-1B
transfer and the PERM process, It really surprised me that during these five
years, I had 4 H-1B visas sponsored by four different employers and the fifth
one was about to be filed.
I am not an immigration attorney, but in the past several years, I did a lot
research on my own and also consulted immigration attorneys on this subject
multiple times. Relying on what I learned, I sailed through different type of
H-1B related issues (except the H-1B lottery, which I never experienced) and
walked out some very challenging situations an international professional
may face.
Among those H-1B visas, two were actually filed within 6 months, when I
was managing to recover from a job loss situation.
In 2009, I graduated directly into the aftermath of the 2008 Financial Crisis.
With the peak unemployment rate at 10%, there were very few job opening
available for new graduates and even fewer for those who need H-1B
sponsorship.
During 12 months OPT period, I was constantly jumping between short term
contract positions and actively interviewing with companies across the
country. Although I managed to be financially sustainable, didn’t get any
breakthrough on my job search till the OPT ended. To be fair, there was one
small company willing to sponsor H-1B for me, but the petition was rejected,
after two rounds the RFEs, on the basis that USCIS didn’t believe this
company had the financial resource to pay prevailing wage.
By the end of my OPT, I was still determined to give a final push. I extended
my job search for 3 more months by switching back to F-1 student visa.
Amazingly, this desperate final attempt paid off. I was hired by a boutique
management consulting firm. Due to the limited opportunities in the job
market, very low number of H-1B petitions were filed with USCIS in that
fiscal year, as a result there was no H-1B lottery. The following year was a
busy one, involves constantly traveling. But I enjoyed and cherished it.
However, shortly after a year, the company lost a major client and decided to
downsize just before the holiday season. I fought for 7 months to get out this
situation and ended up to file one B-2 visitor visa, one H-1B to maintain my
legal status and support myself. Then another one, so I can finally got back
on track of my career. During those seven months, when the first H-1B was
still pending, the second one was still beyond horizon; a beloved family
member in my home country was stroked by cancer…… Suddenly, in this
visa and legal status mess, I urgently need to travel.
At the end, everything worked out. As I said at the beginning of this book,
I’m not an expert on this subject. But to navigate through those crises, I did
my research and what I learned helped me to work everything out. I also
noticed that the only a few available books about this topic was oriented to
help employers rather than international students and professionals. For the
international students and professionals on this journey just like me, there
should have a simple book including most of the answer they are seeking.
Let’s start with this obvious question, because the definition itself actually
explains lot questions, such as why the process and system are laid out as the
current way? Why it is so inflexible for H-1B workers? Why there is an H-1B
lottery and why the process is not that transparent?
The H-1B is a nonimmigrant visa in the United States under the Immigration
and Nationality Act, section 101 (a) (15) (H). It gave the U.S employers a
way to temporarily employ foreign works in specialty occupations.
We are not interested in how the H-1B program was defined in legislation,
but as an international student or professional, here are what relevant to us:
The H-1B visa program is created to benefit US employers. That is why H-
1B work-authorization is strictly limited to employment by the sponsoring
employer at a specific location and during a specific time frame. Yes, the
location is also specifically defined in H-1B petition, because the location
will have an impact on prevailing wage. Within H-1B visa program, US
government also lay out rules to protect the US workers and the prevailing
wage is part of that part (we will discuss more when we reach there).
When you switch jobs, you will hear people talk about H-1B transfer, but
nothing is really transferred. A completely new H-1B petition will be filed
with your next employer. The reason that people tend to call it a “Transfer” is
simply because within your 6 year duration, you don’t need to go through
that H-1B lottery again. Then what is this 6 years duration? That brings us to
the next topic.
H-1B visa is temporary. The duration of H-1B visa is 3 years and it can be
extended up to 6 years in total. In other words, from the day your first H-1B
visa starts, a 6 years countdown clock starts ticking. After accumulating 6
years on H-1B visa, foreign nationals will need to leave the country for at
least 1year, then US employer can sponsor H-1B visa for them and they will
subject to the H-1B cap again. The only exception to extend H-1B beyond 6
years is employment based permanent residency was filed by the employer
before the end of the fifth year. We will discuss this in Chapter 4.Let’s use an
example to illustrate this 6 years countdown clock:
He gets his second H-1B approved and keeps working for Company A for
another year. This puts him a year in his second H-1B visa. Around this time,
Company B notices Vic’s talent and extends a better job offer and he accepts
it. Company B files the H-1B petition for Vic, although the typical duration
of H-1B visa is 3 years, but Vic’s H-1B with Company B only gets 2 years
duration, till the October 2, 2022.
You can work for different employers and change jobs as frequently as you
like, but you cannot stay beyond this 6 years duration. Even in some rare
cases, USCIS made a mistake on their side. Put it into our example. Let’s say
USCIS granted Vic’s H-1B with company B another three years. But it is
Vic’s responsibility to avoid over staying beyond 6 years!
Then what happens after you used up all 6 years’ time? In that case, if Vic
employer didn’t’t file a PERM (Labor Certification, which is the first step of
applying for employment based permanent residency or commonly called
green card) for him by the end of the 5th year of his H-1B (We will discuss
why it is the 5th year in chapter 4). He will have to be outside US for a year
and after that, if Company B is willing to offer him the job and file H-1B
petition for him, he will go through the “H-1B Lottery” again.
Is there any case that the 6 year countdown clock will pause? Yes, of course,
to make sure you fully understand this, let’s go through another example:
Let’s say after October 1, 2016, (when the 6 years countdown clock start
ticking) Vic works for a company A for 2 years, then he decided to quit the
job and continues his education (not on H-1B visa anymore, transfer back to
F-1 student visa), he studies for his Ph.D. for the following 4 years. By
October 2, 2022, He graduated and an employer (Company B) extends him a
job offer, Vic’s H-1B will have 4 years left.
In this example, company B can file a petition which will routinely grant Vic
3 years’ stay and work in US for company B. Then company B can extend
one more year for Vic after that. Then it will hit the 6 year mark again.
For most of the readers, we came to the U.S. for our undergraduate or
graduate degree then seek career opportunities. This specialty occupation
requirement does not concern us. But the logics behind it, a supplement not
competition to domestic supply of talents, explains why there is a CAP
(65,000 plus 20,000 additional visas for applicants with US postgraduate
degrees) and why there is an H-1B prevailing wage.
Every April, on the first weekday, USCIS starts accepting the H-1B petitions,
which if approved later, will be effective (employment authorization are
officially granted) on October 1. USCIS will label each petition with a unique
ID number and group them into the cap-case group (65,000 pool) or
Master/or higher degree Cap group (20,000 pool). When number of received
for each pool is beyond the cap number, USCIS will use computer generated
random selection to pick the 65,000 petitions from cap-case pool and 20,000
petition from Master/or higher degree cap pool.
There is also a C/S cap group, which only apply to citizens from Chile and
Singapore. This is the result from the Singapore–United States Free Trade
Agreement and Chile–United States Free Trade Agreement. Of the 65,000
visas allocated to the capped H-1B visa program, a total of 6,800 are reserved
for use for the H-1B1, which is a variant of H-1B visa. 1,400 are assigned for
Chilean citizens and 5,400 are assigned for Singapore citizen. The C/S cap
group is not the focus of this book.
Your petition, supporting documents, and fee are being returned to you, your
petition was returned for the following reason:
Following these are some instructions suggesting you to file petition for next
fiscal year. From next chapter, we will discuss the path to get your H-1B visa.
We will also discuss how to deal with such situation, when your petition is
not selected.
What is USCIS?
The last but least topic we want cover here is what USCIS is. USCIS is the
government agency, part of the United States Department of Homeland
Security (DHS) that oversees lawful immigration to the United States. One
thing differentiates USCIS from other US government agencies is that it is
funded almost completely by the fees paid by individuals and organizations
for immigration and naturalization services.
Now, you probably get the idea why the filing fee for H-1B (I-129 form) is
$325 and there are also a $1,500 fee for the H-1B visa USCIS “Education and
Training Fee” (if employer has 25 or more full time employees), $750 fee for
employers with fewer than 25 full time employees. USCIS has the following
responsibilities:
We all know that, as an international professional, you cannot apply for H-1B
visa by yourself. Only an employer can sponsor you and file a petition on
behalf you. That’s why in all documents, your employer is the petitioner and
you are the beneficiary of that petition.
Then this lead to a question, what type of employers can sponsor H-1B?
Any US Employers can sponsor H-1B petition, as long as they can meet the
legal obligation, which is enforceable by heavy civil and criminal penalties.
With these legal requirements, involvement of federal government agencies
and immigration attorneys, it is not difficult to imagine why smaller
employers are often intimidated by the H-1B process. We will discuss the
details of these obligations when we explain the Labor Condition Application
(LCA).
A typical timeline for an international student may look like this: secure a job
offer and applies for OPT (Optional Practical Training) before graduation,
then starts working for the new employer with OPT, then employer prepares
and files H-1B petition, then When OPT ends approved H-1B arrives. So
let’s start with OPT.
Operational Practical Training (OPT)
It is a period which undergraduate and graduate students with F-1 visa to get
practical training to complete their education, under the condition that the
students have completed or have been pursuing their degrees for more than 9
months and it is approved by USCIS.
It is an extension of your students visa (F-1) and you can work during this
period. You can work for any employers on paid or unpaid, full-time or part-
time position or internship, as long as it can be categorized as a practical
training associated with your education. It is typically one year, but for the
STEM (science, technology, engineering, or mathematics) graduates, the
duration of OPT is 17 months. This is a huge advantage for STEM graduates.
For H-1B lottery, 17 months OPT allows you to take a second shoot, if the
odds is not in your favor during the first time.
You can only get an OPT for each level of education you received. Let’s
bring back our friend Vic and some examples to illustrate this:
Zero! Because both degrees are at same level: Master. It does not matter how
many degrees you have (in this case master degrees), for all your same level
education experiences, you only get one OPT.
After Vic completed his master’s degree in accounting and used all 12
months OPT time, then he decides to get a master’s degree in mathematics.
After graduate with his second master’s degree, he apply for OPT again.
How many months of OPT will he get this time? He will get 5 months.
Because as a graduate in STEM, he is eligible for a 17 months OPT.
Although he used 12 months already for a same level degree.
If Vic got his bachelor degree (not STEM) in US and then used all his 12
months OPT time then pursued a master’s degree (not STEM), after that he
apply OPT again.
How many months he will get? He will get another 12 months. Because the
first OPT is for his undergraduate degree and the other one is for his graduate
degree.
There are pre-completion OPT and post-completion OPT. Since the focus of
this book is H-1B and we touch OPT is merely because OPT is the common
stage before H-1B, we will only discuss post-completion OPT here.
Because OPT is an extension to the student visa status, university will update
your I-20 form then the students can submit Form I-765, along with some
paraphernalia (2 US Passport-sized photos and a fee) to a designated USCIS
office address. Most universities provide very detailed guiding to their
students on this subject. So I will not waste your time to explain every detail
here and just want emphasize some key areas you need plan ahead.
Besides the timing on filing the application, when you plan OPT to start and
end are other important decisions to make. Because, you are allowed to work
only during the EAD card is valid.
For students already with a job offer, this is easy, make sure OPT starts when
you start working on your new job. For those who are still searching for jobs,
I highly suggest choose a relatively late starting date. The logic behind this is,
the duration of OPT is fixed, by adding a little time before this fixed period,
overall you will get slightly more time to stay in US for your job searching or
explore other options.
You don’t need a job offer when applying for OPT. But students on post-
completion OPT may not accumulate more than 90 days of unemployment,
or your F-1 visa will be out of status. For those STEM students, not only the
duration of OPT is extended, this 90 days of accumulated unemployment
limit is extended to 130 days. Given the definition of employment during
OPT is so open. It shouldn’t be a challenge to maintain employed.
Universities may require you provide the employment information for record.
We have covered enough details about OPT, let’s move to the H-1B visa.
Although filing H-1B is on employer, but H-1B is such an important matter
for your career and life. It is important to know every detail by yourself.
Especially for many middle or small sized employers, your case may be the
first H-1B petition ever for them. When an inexperienced immigration
attorney was preparing my second H-1B petition, I found mistakes made by
the attorney and was able to correct it. Besides, understanding the process
will help you know your options and enable you to negotiate with employers
better.