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.

Hey PGA,

I have one question regarding premium process. Does premium process make any difference

to quota. I fall under Masters quota and my employer is applying mine on regular. Please

let me know if there are any differences between regular and premium..

Tks a lot for your help

What is Premium Processing? Does it guarantee H1 approval?

You pay $1000 extra and can get the decision or at least hear from USCIS 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 doesn't help you secure the cap in any way either. You need to be selected first in the lottery (which applies to Master's quota also if the cap gets exhausted the first day this year), USCIS issues your receipt notice and then they'll see whether it's a normal petition or a premium processing.

Remember that last year they had suspended premium processing for a while due to high volume of applications and they might do the same this year. So even if you apply with premium processing, it might take few weeks before they’ll issue your receipt notice and only then your 15 days will start.

As even the Master’s quota might be decided with the lottery this year, I think it’s better if you file with normal processing first, see if you get lucky in the lottery and receive your cap number and then can file your premium processing application I-907, should you think an earlier decision helps you in any way. 

 

I think premium processing is a good idea if you have the Cap gap and you want to move on instead of waiting for 3-5 months for the decision. You can decide whether to change/extend your status or leave US once the OPT expires if you get an early decision.
.  

Hope that helps.

 

hi i dont have any idea of wether to take OPT or join college after my associate graduation. in fact, i wana go nurshing college and i havent get cheap college for nurshing. so i want to take OPT and work for 1 yrs and go to nurshing. i am graduating this MAY. can anyone please suggest me what should i have to for OPT and after OPT how to join college? any can anyone please suggeset me some cheap college for nurshing. i am in big trouble in this.

PGA

Appreciate for your help dude.. Your insights are really helpful....

Thanks a lot..

rosan,

Try to utilize full term of your OPT as not only will it help you financially and keep you in status, you'll get enough time to make your future plans as well.

Contact your International Student Advisor/DSO for required information and forms. They will issue you a new OPT  I-20 which you need to include with your application. You need to apply for OPT before you graduate, sooner the better so that your EAD card arrives before your employment start date.

You can look for your new school during OPT and get transfered anytime before your OPT expires.

 

thanks for ur reply. can any one please suggest me some nurshing college which are cheaper. i have no any ideas about these college and i even find some colleges but they said i need to give exams which takes me time and i have to wait for long time. so please.. help me for this.

A.U,

If you file for H1 with your OPT  I-20, your H1 will be approved but they won't approve change of status and won't issue your H1 I-94. So even if you change to B2 or another F1 once you file, you need to go out of US to get your H1 stamp and I-94 or file for amendment later.

I don't recommend filing two petitions at the same time. Even if you want to file for B2, you need to wait until your H1 is decided so that you don't jeopardize your H1.

Also, I don't feel comfortable with B2. Going to B2 from F1 and again to F1 if H1 is not approved will definitely be complicated. I suggest that you maintain your F1 all the time. Here are your options:

1) If you can (ie. if you have enough savings to sustain until October) and are willing to forget about your OPT and more than 4 months pay, get a new I-20 now and file H1 with your new I-20. Joining English as a Second Language (ESL) classes is the only option you have as you have only 2 weeks now. If you do that or even join some other college, you actually need to attend classes to maintain status. So we are talking about more than 6 months here.

2) This I think will be best for you:

Apply for H1 with your current I-20 with Premium processing and start looking for schools to transfer for fall. Even if USCIS takes 1-2 months in the worst case  to issue you your receipt number, you should get your decision within May-June. So you'll still have some time in July plus your 60 day grace period (if you qualify) to decide your next move. Join ESL class (which I feel is the cheapest and easiest) or any other school and file for H1 amendment petition(to change status from your new F1 to H1 and issued your I-94) with your new I-20 as soon as your H1 is approved.

With your new I-20, you'll be in status until you amendment petition is approved. Supposing your H1 is approved within June and you file your amendment within July, you should get a decision before or during October. This is better as you can work until the end of your OPT and also might have to spend only 2-3 months for your ESL compared to 6 months in option 1.

After you get your new I-20, If you don't want to file the amendment petition, you can instead go to Canada or Mexico to get your stamp and I-94 so that you can start working on Oct 1, but going out is always risky.

You can email me if you think this is not clear as I feel there is too much information to be able to properly expain everything here.

P.S: Do not take anything explained here as legal advice and discuss all the options with your lawyer.

Hi PGA

Could you pls tell me

1.) does  USCIS charge for the amendment petition after the H1B approval to get the H1-I -94?

2.) which one is better to show USCIS while filing H1B to maintain the status till october( with the ESL I-20 or Kaplan I-20) since I am filing under Master's Degree quota(MBA)?

3.)Since Kaplan issues I-20 only for 6 months and if they issue I-20 now, its going to expire before sept 31 and I again need to maintain status till oct 1st ,what is yr suggesstion on that?

thanks

Pallaghare, I really appreciate your advice.It takes a real good man to put in time and effort in helping others. U r just  great. I will email you later with some questions regarding that issue. Thanks a lot.

guys, i gotta ask you this. there is this consultancy operated by nepali in irving, tx and is ready to file h1b under undergrad quota on my brother's behalf who is ktm right now working with some IT company. this guy is asking around rs. 2 lakh just to file h1b for him and tells him that if his h1b petition gets rejected he is gonna refund my brother almost all the money except 200-300 US dollars. since i myself don't know much about this h1b stuff... my first question is.... does USCIS refund you your h1b petition fee if your petition gets rejected? how about lawyer fee and all? do you think this guy is being sincere with my brother when he says he is gonna refund all of his money back if his h1b petition gets rejected? if this guy is sincere about what he says i think it's worth giving a shot huh.... what do you say? i would highly apprecite your inputs guys.

subedikancha,

1.) does  USCIS charge for the amendment petition after the H1B approval to get the H1-I -94?

Yes. The fees for an amended I-129 petition for COS should be same as the original.

2) which one is better to show USCIS while filing H1B to maintain the status till october( with the ESL I-20 or Kaplan I-20) since I am filing under Master's Degree quota(MBA)?

Shouldn't matter to USCIS which school you go as long as you have a valid I-20 and you are in status. Come to think of it, they'll know what you are doing (that you are just bridging the gap) but won't have any ground to deny your petition, provided you have proper documents.

USCIS knows that this Gap is a problem and in 2004, they had actually allowed to stay without any new visa status or F1 extension even if you had a gap. Unfortunately this cap gap relief they provided was discontinued after 2005. So don't worry about USCIS, they know what's going on.

3)  Since Kaplan issues I-20 only for 6 months and if they issue I-20 now, its going to expire before sept 31 and I again need to maintain status till oct 1st ,what is yr suggesstion on that?

I don't know much about Kaplan. As for ESL, you can get an I-20 for upto 12-16 months I think. Getting an I-20 for 2 levels (about 8 months) should do the trick.

(P.S: Do not take anything explained here as legal advice and discuss all the options with your lawyer.)

 

DreamCatcher,

First thing is, the new H1 regulation requires that the employer pay all the H1 related fees. Employee cannot pay the petition fees himself. So if you are being asked to pay yourself, it's illegal. But if you and your employer still want to go ahead, it's completely upon you.

The total H1 filing fee for for regular processing is $2320 if your company has more than 26 full time employees and $1570 if less than 25. You send a check for this amount to USCIS. Everything else is legal/administrative fees that your lawyer keeps. So you can calculate if whatever you are being asked for is reasonable.

If you don't get selected in the random lottery, USCIS won't cash the check and will return to the employer, the whole application package along with the check. You should get all that money back if you are paying yourself in this case. Now whether the lawyer returns his/her legal and administrative fees is between you and your lawyer.

However, if you are selected in the lottery but your H1 is rejected or denied, you won't get anything back.

Visit USCIS web site for complete information on fees and process.

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ddc8288c5c1d7110VgnVCM1000004718190aRCRD

 

hi palla ghare,

first of all , thanx for sharing all those valuable information to us.

I'm also goin thru same condition. my opt is expiring on may 12,2007 and i'm going to file my h-1b on master's cap on april 1,2008 but my question is that can i start ESL/Kaplan from july 1st,2008 ( that falls within the grace period)?

will my h1b will be affected if i send my current i20 (which says that my opt expiring on may 12,2008) instead of new i20 ( by applying to some college now)?

hoping for yr answer......thanks in advance

Dear PGA,

That is really a good stuff... Thank you PGA.


I'm having some problem regarding my OPT and H1-B, and hope u can suggest me. My bad-luck, I happen to receive "incomplete document" letter from USCIS for my OPT application. I have submitted those document but I am afraid like it was mention that it will take 14 to 60 days to issue OPT card. With best luck, it could come before April, otherwise its goanna come after April 1st, meaning late for applying H1-B.

Can I apply for H1-B with my trans-cripts and the receipt letter of my application for OPT from USCIS?

Also, I don't have SSN which I can get only once I have OPT card in my hand. Is SSN also required to apply for H1-B?

 

dangol.

 

Could anyone tell me if a copy of I-20 is required to file H1B? My lawyer never asked me for a copy , he did ask for my OPT card though.I have applied for B2 to cover my gap. Is that the reason he didnt ask for my I-20? I am just guessing that they would still require a copy of I-20. ANYBODY please let me know.

silence43,

You can apply with your current I-20 but as you'll have the gap, USCIS will approve your H1 but not the I-94. If you apply with a new I-20 now that covers the gap, you'll get your I-94 also and will be in H1 status starting Oct 1.

If you apply with your current I-20, USCIS won't issue your I-94.

To get your I-94, you either a) Need to go out of US before your OPT grace period expires, apply for H1 stamp and come back in the last week of September OR b) Join ESL, Kaplan or a new school in July (before OPT grace period expires) and file H1 amendment petition with the new I-20. The amendment petition can be filed only after your original H1 petition is approved.

If you are applying with your old I-20, file under Premium processing so that you get the H1 decision and get enough time to transfer before grace period expires. 

dangol,

Including your current OPT I-20 that states the OPT start and end dates should be sufficient for now. I don't think including the receipt for OPT is also necessary as that might just create confusion.

If they need the copy of your OPT EAD card or your SSN or any other document, they'll send you Request for Further Evidence (RFE). By that time hopefully you'll have all your documents in hand. So don't worry about that now and file with your OPT I-20. 

 

Hey PGA

I have a query . I am going to graduate as Dental Surgeon soon and defintalley i do have  to give some US licensing exam before i can practice but i am sure i can go through it. Lot of clinics are offering me the job  with good signing bonus so there is no problem of JOB. But i am worrid about H1. Is there ay kind of medical or helath related quota for H1?

Ur reply will be appreciated.

N72 

Hey PGA

I have a query . I am going to graduate as Dental Surgeon soon and defintalley i do have  to give some US licensing exam before i can practice but i am sure i can go through it. Lot of clinics are offering me the job  with good signing bonus so there is no problem of JOB. But i am worrid about H1. Is there ay kind of medical or helath related quota for H1?

Ur reply will be appreciated.

N72