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.