Whether you are a student under OPT, CPT and you know you want to work here, there are some important info you need to know. I created this post to answer the most frequently asked questions my clients have.
WHAT IS AN H-1B VISA?
H-1B is a nonimmigrant Visa that allows you to work in a specialty occupation. It’s also known as “working visa” because it’s one of the most common work visas.
WHAT ABOUT OPT?
OPT allows you to work because you have F-1 visa, a student visa but it’s very limited. The OPT, as you know, will only allow you to work for one year (If eligible, you could get an extension for longer)
SO, WHAT IS THE DIFFERENCE?
H1-B is a separate nonimmigrant classification specifically for employment, while your OPT is attached to your student status.
WHAT IS A SPECIALTY OCCUPATION?
A specialty occupation is any occupation that requires a specialized knowledge. For example: accounting, marketing, business specialties… Most of this occupations require at least a bachelor’s degree or its equivalent.
CAN I APPLY FOR H-1B MYSELF?
Unfortunately, you cannot. An employer must sponsor you. Your employer will apply for you. So that means that you have to find a job that will be able to sponsor you.
SO, WHAT SHOULD MY EMPLOYER DO?
An employer must submit an application to the U.S. Department of Labor and U.S. Citizenship and Immigration Services (USCIS) to demonstrate that the employer, position and employee meet the criteria for H-1B status, meaning (but not limited to): that your employer has the money to pay your salary, that you will be hired in a position that is related to your degree…
IS THERE ANY LIMITS ON THE NUMBER OF H-1B?
Yes, I don’t want you to be scared but, yes. Also known as the cap, there is a limit of 65,000 new H-1B visas granted each year, plus an additional 20,000 visas for those with advanced degrees from the U.S (PhD, MA…) So if you are here on F1 studying a master degree, you will have more chances.
SO, WHAT IS THE “LOTTERY”?
Since there are so many people applying for jobs in the U.S., the USCIS has instituted what is called the “lottery system”. The reason is that more than 65,000 regular H-1Bs were received on the first possible day of filing. After the lottery system was created, filed cases that are not chosen via lottery system, are rejected.
BUT I HEARD SOME PEOPLE ARE EXEMPT FROM THE CAP?
It’s true, some people are not subject to the cap. For example: U.S institutions of higher education, university-affiliated nonprofit entities (but only those with the IRS certification), and nonprofit or governmental research organizations.
WHEN SHOULD I START THE PROCESS?
All applications for the year should be received by the USCIS on April 1st, which means that your employer should start your application preparation in around January or February.
WHEN COULD I START WORKING?
Your status and work authorization becomes effective in October 1st.
WHAT IF I’M ONE OF THOSE PROFESSIONS THAT ARE CAP EXEMPT?
If your profession is cap exempt, your employer can file your application anytime.
WHAT IF I REQUESTED AN H-1B BUT MY OPT WILL FINISH BEFORE OCTOBER 1ST?
If you requested (and obtained) an H1-B for October 1st and your OPT will expire before that, your OPT might be extended until October 1st.
This is what is known as the cap gap.
CAN I TRAVEL WHILE I WAIT FOR MY H-1B PETITION?
In general, I don’t recommend you to travel outside the US while you wait for your answer because, even if you get accepted and you are outside the US, you might have to apply for an H-1B visa abroad.
WHAT IF MY EMPLOYER IS NOT FAMILIAR WITH THE PROCESS?
That is one of my main concerns. A lot of times, my clients come because they either have received bad advice from their employers or their lawyers or because their employers don’t have any information at all. Sometimes people overlook that function. We, as lawyers are here not only to help you when things go wrong but to prevent things from happening, or to smooth things up. So if you have any questions please don’t hesitate to contact me. I’m here to help you or your employer.
KEYS OF THE TRANSITION TO H-1B. THIS IS THE MOST IMPORTANT PORTION OF THIS POST.
FIRST. You should explore your options way before you finish school. That means, research companies you would like to work for, send resumes and emails in advance.
SECOND. As soon as you have a prospect, contact a lawyer to help you with the process. Remember that this is not a regular work issue but an immigration one.
THIRD. Don’t make any plans to go outside the United States until you receive your approval. I can’t stress this enough.
FOURTH. Do not lose your status. You must ask for an OPT extension if your OPT expires before getting your H-1B approval. If you get rejected and have to wait outside, please don’t stay in the U.S without Status. Losing your status means that there is nothing you could do. Even if you got approved later on, you won’t be able to adjust your status. If you want more info about it, please CLICK HERE.
LAST BUT NOT LEAST. Remember that it’s your responsibility to make educated decisions. There are many ways you could be doing something that might hurt you without even knowing it. For example: if your employer files an H-1B petition on your behalf for a position that you have no intention of taking, and which the employer has no intention of offering you, just so you will increase your chances of being counted under the cap, you would be committing fraud and you might be banned from the country and not allowed to enjoy future immigration benefits in the United States or even being criminally prosecuted.
If you suspect of anything or are just unsure, please contact me. My job is to help you make good decisions and to make your transition to the workforce as smooth and pleasant as possible.
As usual, I hope this information is useful. You can contact me at: firstname.lastname@example.org