It’s become quite common for foreign students in US to opt for professional employment in the U.S. itself after completing an academic program or practical training. However, a person holding a student visa cannot simply start working as and when he or she wishes to. For that, the student requires a change of Visa status, from student visa to work visa, which would then allow him or her to work in the US legally. The most preferred is the H-1B visa category, which eventually allows the visa holder to apply for a citizenship in the long run as well.
H1B Cap and Student’s Dilemma
A limited number of H-1B visas are allotted per fiscal year i.e. October 1- September 30, by the United States Citizenship and Immigration Service (USCIS). These Visas become open for application six months before the beginning of the fiscal year. Which means a student can apply for a H1B say on April 1, 2006 with a work start-date of October 1, 2006.
Unfortunately, the number of students seeking H-1B status, and the number of companies seeking to hire them is much greater then the allotted number. Consequently the number of H-1B visas available for those holding bachelors’ degrees, which is capped by law at 65,000 per fiscal year, gets over long before the end of fiscal year.
For fiscal 2007 the cap was reached by May 2006, even before the fiscal year had started. But because they were the following year’s allotment, all these H-1B visas had start dates of October 1, 2006 or later. This led to a problem for students who were graduating this year or completing OPT.
The students holding F-1 visa are generally approved for “duration of status,” or for the length of time the holder maintains status. The visas expire when that activity ends, i.e. when the academic year is over and the course completed. Now, unless the students have made the change to H-1B, they are at that point immediately out of status and are legally required to return home.
Now, if the earliest H-1B start date a student can secure is October 1, 2006 while his or her student status expires in June, 2006, he or she will either have to leave the U.S. by the expiration of the grace period or remain in the U.S. unlawfully.
Previously, the immigration service used to extend the duration of status for F-1 visa holders in such situations. However, for the coming year we are yet to see any sign that the government will grant that relief. In such a situation F-1 visa holders who have filed for change of status will find the H-1B classification approved but the change to H-1B status denied. This will lead to a “status determination” – a finding that that the F-1 student is out of status – and they will be forced to return to the country of origin and process the application from there and lose valuable time and money in the process.
Other Avenues Available
There are a few alternate options open to the students. For students who have not yet filed for change of status, we suggest – avoid status determination by designating the application for consular notification, not change of status, and apply for the H-1B at a border post in Mexico or Canada.
In such cases, the student may submit the visa application as soon as the H-1B petition is approved by the immigration service. The Department of State has indicated that most consular posts will process the H-1B application before October 1. However, the visa holder won’t be able to enter the U.S. on the H-1B until 10 days prior to the effective date of the approval notice.
Another possible avenue around the cap gap is the extra allotment in the present fiscal year of 20,000 H-1B visas for those graduating with master’s degrees or higher from U.S. institutions.
Student should also explore employment at an institution of higher education, a related or nonprofit entity, a nonprofit research organization, or a governmental research organization as they are not subjected to the cap.
What is happening on the legislative front?
There are currently proposals in congress that would make significant changes to immigration law for international students and scholars, but it is still too early to know which proposed legislation will ultimately become law. One of the proposed changes would increase the H-1B cap to 115,000, and another proposal would exempts all who have received an advanced (Master’s) degree from a U.S. institution from the H-1B cap.
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