Can you provide some general background information on the H-1B visa?

H-1B status creates eligibility for the temporary employment of foreign nationals with a specific employer in a profession or "specialty". Immigration regulations state that "a specialty occupation is an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty as a minimum for admission into the United States. " H-1B status is "company and time specific," meaning that it permits you to work for a specific employer for a specific period of time." (If you wanted to work for another employer in a specialty occupation, the new employer would have to file a new petition for you.) Initially, an H-1B petition may be granted for a validity period of up to 3 years; H-1B status may be extended for up to 3 more years for a maximum of 6 years of stay in H status. Any time an alien spends in L status is counted toward the 6 year maximum. In some instances where an alien is filing for a green card, an H-1B may be extended beyond 6 years.

In preparing an H-1B petition, the employer must demonstrate to the USCIS that the offered H-1 B position qualifies as a "specialty occupation" and that the employer will pay the H-1B employee the higher of either the "prevailing wage" or the actual wage. In many cases, an employer will retain an attorney to prepare the petition and supporting documentation needed to process the paperwork that is submitted to the U.S. CIS (Citizenship & Immigration Services, frequently still called "the USCIS"), although some companies may designate a human resources representative familiar with the procedure involved in obtaining an H visa to handle this process. In addition to permitting the non-immigrant H-1B employee to be employed and reside in the U.S. for up to six years, there exists another important characteristic of H-1B status. Unlike the B or F visa categories, an H-1B employee may have a "dual intent." That is, the holder is permitted to maintain both non-immigrant and immigrant intent simultaneously, and is not subject to the bar under INA 214(b); that section of the law permits a U.S. consular official to deny a non-immigrant visa to an individual who is a presumed "intending immigrant". This section cannot serve as a basis for denying an H visa. Allowing this "dual intent" will greatly ease the burden of qualifying for the H-1B nonimmigrant visa.

Regarding the quota, what has happened with the H visa in the past? What is the current situation with H-1B Visas?

H-1B visas are one of the few non-immigrant visas limited by an annual quota (or "H1-B cap"), however, foreign nationals employed at an institution of higher education, a related or nonprofit entity, a nonprofit research organization, or a governmental research organization are exempt from the cap! Each year on October 1st, the beginning of the fiscal year, a limited number of H-1B visa will be issued which may be accessed until the end of the fiscal year, the following September 30.

On April 5, 2007, the U.S. Citizenship and Immigration Service (USCIS) announced that over 133,000 applications for H-1B visas had been received in two days. This number appears to include both the 65,000 H-1b cap and the additional 20,000 cap for holders of higher (MS / Engineer's / Ph.D...) degrees from U.S. universities. Subsequently, petitioners not selected were advised to re-submit applications on April 1, 2008.

The USCIS just announced on April 8, 2008 (http://www.uscis.gov/portal/site/uscis) that it has already received enough H-1B petitions to exhaust both the 65,000 H-1B quota and the 20,000 exemption from the quota for graduates of U.S. universities with a master's degree or higher. This means that both the "bachelor's degree cap," and the "master's degree cap" have been exhausted. The USCIS will now begin the lottery process, first selecting 20,000 petitions for the "master's cap." Any petitions not selected for the "master's cap" lottery will be considered for the "bachelor's cap" lottery. Petitions not selected for processing will be returned (with filing fees).

How long does it take to obtain an H-1 visa?

The H-1B petition process requires filing applications with two government agencies, the Department of Labor and the U.S. Citizenship & Immigration Service (USCIS). Normal processing time varies from three to six months, but during peak season the processing time is approximately six months. For an additional fee of $1000, premium processing may be available, which guarantees USCIS adjudication within fifteen calendar days. NOTE: New regulations effective April 8, 2008 will permit a student who is currently in status on OPT, and who is the beneficiary of a timely-filed H-1b petition, but whose OPT would expire before the H-1b becomes available, will be able to remain in status AND employed during the cap-gap period between the end of OPT and the beginning of the H-1b.

What happens if I am currently working using F-1 Post-Completion Practical Training or J-1 Academic Training, and my permit to work expires and the H visa has yet to be approved?

New F-1 OPT regulations which took affect on April 8, 2008 will now help an F-1 student in this situation.

An F-1 Student who is currently in status on OPT, and who is the beneficiary of a timely-filed H-1b petition, but whose OPT would expire before the H-1b becomes available, will be able to remain in status AND employed during the cap-gap period between the end of OPT and the beginning of the H-1b. This would apply to all students on OPT, not just STEM students. (For more information on STEM student issues please review the question below.) The extension of duration of status and work would automatically terminate upon rejection, denial or revocation of the H-1b petition filed on the student's behalf. 

Is it true that I may also extend my F-1 OPT for 17 months beyond my 12 month endorsement?

Yes, OPT will be extended by 17 months for certain F-1 students whose I-20's were issued for specific degrees in Science, Technology, Engineering and Mathematics (known as STEM). A total of 29 months of OPT will be permitted for students who qualify for this new extension.

What are the fields of study that would qualify an extension based on STEM?

The DHS has identified the following fields in STEM: Actuarial Science, Computer Science, Engineering, Engineering Technologies, Biological and Biomedical Sciences, Mathematics and Statistics, Military Technologies, Physical Sciences, Science Technologies and Medical Scientist.

What other concerns or issues exist regarding STEM?

Employers who wish to extend a student's OPT based on STEM degrees, must now use the U.S. Citizenship and Immigration Services' (USCIS) E-Verify employment verification program. This allows the USCIS to match applications for employment with immigration status. However, this could have a negative affect on large companies, as very few employers are in E-Verify at the moment. (Once an employer has used E-Verify to hire a student based an extension of OPT, they will have to use E-Verify for ALL subsequent hires!) This issue may consequently prevent a student whose major is based on a STEM degree from qualifying for an extension.

At this time, we anticipate that there may be delays in implementing OPT extensions based on STEM, since there are issues regarding E-Verify and other concerns that need to be resolved. Also, until the Department of Homeland Security provides operating instructions and new forms, there is no actual way of submitting a request for an extension based on STEM.

Will I have another 12 months of OPT if I come back for another degree after being on an H visa?

Yes, new immigration regulations will allow you to qualify for 12 months of OPT for a new degree level.  

Because the USCIS may take 90 days to process an I-765 Application for an Employment Authorization Document ("EAD:), students should initially apply for all 12 months of their post completion practical training as is available to them to cover their transition to the H visa.

For information on how to apply for OPT, please review this web page.

You may also benefit from reviewing a very detailed FAQ on the Employment Authorization Document (EAD) .

Why is the International Center so reluctant to provide advice to students who wish to obtain H-1B visas after graduation?

While the International Center can provide advice on issues of practical training and while we are responsible for processing H-1B visas for those employed by Stanford, we are not able to provide advice on H-1B issues to those who are not employed by Stanford. If you are intending to work for a company and that company is planning to apply for an H-1 visa for you, you will need to seek advice and information from the company's immigration attorney.

The following are examples of questions that the I-Center feels should be answered by your employer's attorney if you are not employed by Stanford:

* can I study while working on a H-1B?

* is it possible to work as a consultant while employed on an H-1B?

* what can I do if my practical training is expiring and my H-1B visas has not been approved?

To help students understand the issues involved in obtaining H-1B visas the I-Center offers a Winter/Spring workshop that specifically covers H1-B issues.

It is recommended that students begin to discuss application for an H visa with their prospective employer as soon as possible.

Students who are seeking information on H and other types of visas, as well as permanent residency may review this list of attorneys and contact one of the listed attorneys for (fee based) advice.

While USCIS regulations provide a variety of opportunities for you to be employed during your time in non-immigrant status, working improperly or without authorization is a serious violation of your status. You should therefore consult with your Designated School Official (DSO) / International Student Advisor at the Bechtel International Center before taking up any employment as an F-1 or J-1 student.

Can I travel after graduation while using Optional Practical Training if I have an H-1 petition pending with USCIS?

Traditionally, F-1 students have been able to re-enter the U.S. if they have:

A. valid passport

B. valid visa stamp in passport (visa stamps may only be renewed outside of the U.S., ideally in your home country.) WARNING: If you are concerned about obtaining a visa or being delayed, then do not travel outside the U.S.!

C. original SEVIS based I-20, with the practical training "recommendation" endorsed on page 3

D. signature for re-entry on page 3 (IMPORTANT: once the student has applied for post-completion practical training, the signature is valid for only 6 months, not 1 year).

E. Employment Authorization Document (EAD)

F. proof of funding

G. Job offer letter or letter of employment (Students in Post-Completion Optional Practical Training are now required to have a job offer letter or letter of employment in order to re-enter the US after graduation.)

WARNING: Although you may be able to re-enter the U.S. in F-1 status, the USCIS may consider you to have abandoned the change of status portion of your H-1B petition. In such cases re-entry in F1 status may not be advisable. Please talk to an attorney about any issues relating to travel and the H visa. For further information on re-entry to the U.S. in F-1 status please review the FAQ on travel related issues.

If after changing to an H visa, I decide to leave the company (or get fired) can I change back immediately to my student status and re-claim any unused part of my practical training that was left over after my H-B visa was originally approved?

No. Any practical training that was issued to you is now long gone and you may not "re-claim" it.

It appears that the dot-com I am working for is planning a massive layoff. How much time do I have to remain in the U.S.?

There have been a lot of comments in the press in late March (2001) about a statement from USCIS spokesperson Linda Dodd-Major (Acting Director of DOJ/USCIS Office of Business Liaison), that due to an increasing number of H-1B's subject to layoffs, the USCIS would not strictly enforce its rule that a new petition must be filed immediately.

The letter below sets the record straight and is the most definitive statement we have seen on the H-1B grace period.

"As for a 10 day "grace period" following termination of employment-based nonimmigrant employment, there is none. Although the H-1B alien can extend 10 days before or after the approved period, for the purpose of making personal arrangements in anticipation of or following the approved H-1B employment, that "grace period" must be included within the approved stay in the US, as indicated on the Form I-94, or it does not exist. An H-1B (or any other) alien may not simply tack it onto the expiration date on the I-94. Since H-1B classification derives from the approved employment, the status ends if and when the employment ends. No grace period. Accordingly, if an H-1B or other employment-based nonimmigrant is laid off, his only chance for getting USCIS to approve a request for change of status or change in approved H-1B employment after that time is to include a letter with the petition asking the Service Center director to exercise his/her discretion to approve the change in spite of the status lapse. Whether this is done by a SC director or not depends largely on the facts of the case, typically that the lapse was short and the reason for it beyond the alien's control. If the SC director does not exercise the requested discretion to "forgive" the status lapse, in the case of an H-1B alien, the case will be treated as a new H-1B case, needing a new H-1B number (subject to the cap). The alien will not receive a replacement I-94 from the SC and will have to leave the US, obtain a new visa (if necessary), and re-enter the US, receiving a new Form I-94 that can be used for employment eligibility verification purposes for the new (approved) employer/employment."

Any final advice?

Processing times for H-1B visas vary and can take up to six months to process (unless premium processing procedures are used). This means that you should not wait too long after beginning practical training to talk to your employer about beginning the process of petitioning for an H-1B visa. The use of H-1B visas is of concern not just to universities but to industry in general. In fact colleges and universities use quite a small proportion of all available H-1B's in any given year, and as of Oct. 2000, they are no longer subject to the yearly quota. NOTE: H-1B visas are also approved on a first come, first served basis, and recently, also on a lottery process. Because of this, there is no way that either the International Center or companies can expedite the process of obtaining an H-1B visa. However, if your company is willing to pay the extra expense for "premium processing" (which includes an additional processing fee of $1,000) then the H-1B process can take as little as 15 calendar days (if approved).

H-1B PETITIONS An Overview of the Process

Definition: A foreign national coming temporarily to the USA:

1. to perform services in a specialty occupation,

2. who meets the requirements of the specialty occupation, and

3. for whom the potential employer has filed Labor Condition Application verifying that it will pay the employee the "prevailing wage."

Specialty Occupation: Requires:

1. the theoretical and practical application of a body of highly specialized knowledge, and

2. attainment of at least a bachelor's degree or its equivalent in the specialty as a minimum for entry into the occupation in the USA.

Foreign National Qualifications:

1. full state licensure, if required,

2. completion of degree required, or

3. both of the following:

(i) experience in the specialty equivalent to the completion of such degree, and

(ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

Labor Condition Application (LCA): Requires:

1. Employer to show that the wage to be paid is at least 95% of the prevailing wage in the industry (involves consultation with state employment service or reliance on other industry surveys), or the actual wage for the position if higher;

2. Employer must post a notice in two places on the premises or give notice to any relevant bargaining unit;

3. Employer must file the LCA with the Department of Labor, stating:

(i) it is offering the prevailing wage and favorable working conditions;

(ii) there is no strike or lockout;

(iii) employees have been given notice of the application; and

(iv) pertinent information about the position

Procedure for Obtaining H-1B

A. Initiation of Process

1. Seek employer's agreement to undertake process.

2. Find a competent lawyer to represent you.

3. Lawyer will assess overall likelihood of success and identify problems.

4. Describe job requirements and duties.

5. Submit prevailing wage request to SESA.

6. Assess need for other survey after reply is received.

B. Labor Condition Application

1. Lawyer must be sure that employer understands requirements and risks.

2. Lawyer prepares papers for company signature.

3. Company reviews and signs if appropriate.

4. Lawyer submits to DOL, which adds at least seven days to review and return.

5. Once returned with DOL signature, H-1B may be filed.

6. Employer must maintain files including a public access file, containing legally required documentation.

C. H-1B Petition

1. Lawyer reviews job requirements and duties with degrees and transcripts to determine what documentation is required, including any equivalency evaluation.

2. Lawyer proceeds to obtain necessary documents.

3. Lawyer obtains information regarding company, foreign national and position, and prepares forms, letters, and supporting documentation or submission.

4. Lawyer sends forms and letters to company and foreign national for review, amendment, and signature.

5. Forms are returned and submitted as a package to U.S. CIS Service Center.

This handout was revised with the assistance of noted Immigration Attorney Christine Brigagliano (Law Offices of Marc Van Der Hout & Brigagliano). Before attending any H-1B seminars, please read this FAQ to familiarize yourself with the material that will be covered. The H-1B seminars are moderated by Rolando M. Villalobos, Assistant Director of the Bechtel International Center.