Monday, April 04, 2005
What To Do While Waiting for 20,000 H-1Bs
Many people are subject to this scenario: They are currently in an F-1 Optional Practical Training status and are working. Their OPT will expire sometime between now and October 1st when the new 65,000 H-1B quota becomes effective. As a result there will be a gap in status and employment between the expiration of OPT and October 1st.
The 20,000 additional H-1B numbers would save their situation, but there is still no news on when they will be available. What to do?
Here are a few general possibilities, some or all may not apply to specific situations. If you are in this situation, get specific counsel from a knowledgeable immigration professional. Don't relay on "friends" experiences.
1. File now for a spot in the October 1 quota - The candidate will not be able to work after the OPT expires, but might be able to stay in the US pending the application. In the past the USCIS has cut some people in this type a situation a break (allow them to stay in the us while waiting the start of the H-1B period.) They may do it again, but if they don't, or if the specific situation does not allow it, the candidate would have to leave the US anyway to get the actual visa stamp in October before receiving H-1B work authorization.
2. Get an extension of the I-20 in F-1 status for a new educational program. Again, work is not authorized (unless CPT is available,) but the person would be able to stay in the US and continue their education.
3. Change to B-1 in the meantime. This is only a temporary measure and there would have to be a good qualifying reason to make the change. There will have to be a subsequent change to H-1B from B-1 if the change is granted. B-1's cannot work, but could stay in the US.
4. Enter a J-1 program. If a program that allows the worker to continue training for their profession and allows work authorization, this could allow them to continue working for 18 months after the change to J-1. The candidate should check with their employer, employer's professional organization and school for this. However, care should be taken that the program does not entail the two year home residency requirement. If it is not clear, inquiry should be made from as many sources(immigration lawyers, student advisors, etc.) who are knowledgeable in this as possible, it is worth investigating exhaustively.)
5. If married and the spouse is on a J-1 visa, the candidate, as J-2 can get work authorization.
In any event, to get an H-1B from the 20,000 quota, regardless of what else is done, the sponsoring employer will have to be ready to file at a moment's notice.
The 20,000 additional H-1B numbers would save their situation, but there is still no news on when they will be available. What to do?
Here are a few general possibilities, some or all may not apply to specific situations. If you are in this situation, get specific counsel from a knowledgeable immigration professional. Don't relay on "friends" experiences.
1. File now for a spot in the October 1 quota - The candidate will not be able to work after the OPT expires, but might be able to stay in the US pending the application. In the past the USCIS has cut some people in this type a situation a break (allow them to stay in the us while waiting the start of the H-1B period.) They may do it again, but if they don't, or if the specific situation does not allow it, the candidate would have to leave the US anyway to get the actual visa stamp in October before receiving H-1B work authorization.
2. Get an extension of the I-20 in F-1 status for a new educational program. Again, work is not authorized (unless CPT is available,) but the person would be able to stay in the US and continue their education.
3. Change to B-1 in the meantime. This is only a temporary measure and there would have to be a good qualifying reason to make the change. There will have to be a subsequent change to H-1B from B-1 if the change is granted. B-1's cannot work, but could stay in the US.
4. Enter a J-1 program. If a program that allows the worker to continue training for their profession and allows work authorization, this could allow them to continue working for 18 months after the change to J-1. The candidate should check with their employer, employer's professional organization and school for this. However, care should be taken that the program does not entail the two year home residency requirement. If it is not clear, inquiry should be made from as many sources(immigration lawyers, student advisors, etc.) who are knowledgeable in this as possible, it is worth investigating exhaustively.)
5. If married and the spouse is on a J-1 visa, the candidate, as J-2 can get work authorization.
In any event, to get an H-1B from the 20,000 quota, regardless of what else is done, the sponsoring employer will have to be ready to file at a moment's notice.
