As spring graduation approaches, many international undergraduate students may begin to wonder what their next steps are. Those that are looking for employment in the United States may run into a big roadblock, the H-1B visa application deadline is before most graduations. The H-1B Visa is a non-immigrant visa that authorizes foreign workers in specialty occupations to be sponsored by an employer to work in the US temporarily. H-1B applicants must have a bachelor’s degree or an equivalent at the time of their visa filing. It does not matter if the applicant is graduating in June and will began their employment in September. This roadblock is not only unique to spring graduates, but also winter graduates whose diplomas are not ready until after the H-1B April filing date.

Undergraduate students applying for the H-1B applications have a few options. The F-1 student visa allows students to work up to 12 months in a field related to their major area of study. This is called Optional Practical Training (OPT). Students are allowed to apply for pre-completion OPT after they have been enrolled as a full time student for one academic year, and work 20 hours or less during regular academic semesters or terms and full time during academic breaks. Post-completion OPT allows students to work after they have completed their degree, and work either part time or full time. Students are only allowed to work a combination of 12 months, for example if a student worked 5 months before completing their degree under OPT, they will only be able to work 7 months under OPT after the completion of their degree.

If a foreign student is planning on working in the US after graduation and is aware that they will not be able to complete their degree requirements until after the H-1B deadline, they should consider using all or most of their OPT after they have completed their degree.This will allow them to remain and work in the United States before and after their diploma is ready and to apply for the H-1B the following April for the next fiscal year. Students that are earning or have earned a degree in either science, technology, engineering, or math should keep in mind that they are now able to apply for a 24-month extension to their post-completion OPT.

Applicants that have completed all their degree requirements, but will not graduated or received their diploma before the H-1B April filing date may be able to receive a H-1B degree certification letter from the university. The letter would be provided by the university’s registrar office. The letter would confirm that the applicant has completed all their degree requirements for graduation and the degree the applicant will be receiving. However, if a student is currently enrolled in a requirement needed for their degree, their university will not be able to issue a degree certification letter for them. This may be an option for many winter graduates, who have completed their degree but their diploma is not ready before the H-1B application deadline.

Applicants considering graduate school should be aware that USCIS exempts a certain number of applicants with a US master’s degree from the H-1B visa cap. Foreign students considering graduate school should evaluate their options and decided whether applying for the H-1B after completing graduate school may be a better option for them. Applicants should also look at their individual criminstances and speak to a lawyer to evaluate if are any other avenues for them to receive a visa and work authorization in the United States after graduation.

Sydney Wilson
​HMA Legal Intern, Spring 2018
​

Most practicing immigration lawyers remember the chaos in 2007 and 2008 when the H-1B caps were met and filled in one day.  Stories of four 52' semis parked outside the Vermont and California Service Centers the morning of April 1, each filled to the top with boxes and envelopes.  Only a fraction of which would be selected by a computer to win the H-1B lottery - what happens when Congress fails to update its programs.


Now it appears that maybe history is repeating itself.  And still no solution in sight! 

Only 65,000 H-1B visas are available every fiscal year.  Another 20,000 are available for graduates with US Master's degrees.  Remember, an alien can only be counted against the quota once every 6 years, so the quota does not apply to extensions and transfers.  There are also a fair number of cap-exempt H-1B's, usually when the employer is a university or affiliated with one.

To get an H-1B, an alien has to have a bachelor's degree or its equivalent.  These are all smart, driven, professional people.  And our policies put a quota not only on visa numbers, but on intelligence.  Those aren't my words.  Those are the words of Bill Gates.

According to a USCIS announcement on March 15, USCIS anticipates a great deal of filings, probably in excess of the 65,000 available.  In response to this, USCIS is making a change in H-1B filing practice.  Premium processing petitions (where you get a decision within 15 days for an extra $1,225 in filing fees) will now only be data-entered after April 15, 2013.  You can still file your premium processing case as of April 1, but the 15 day clock won't start running until April 15.  This is so that USCIS can data enter in all the regular processing H-1B petitions they're expecting the first two weeks of April.  So basically, April 15 will be 'day 1'. (This means your case will not be delayed if you choose to premium process.)  

If you file on Friday, March 29, 2013, the petition will arrive on Monday, April 1, 2013.  They will hold all filings until Friday, April 5, 2013 and then count the filings.  If the cap is not filled, then all cases will be receipted and no lottery will be held, but April 15 will be "day one" for premium processing filings.

If more than the allotted number arrives on or before April 5, 2013 then there will be a lottery.  If past years are any indication, there will be two rounds.  The first round will be for master's degree cases, and the second for the "losers" from the master's degree cases which will be tossed into the general lottery for the non-master's cases.

If you're on OPT, you might want to consider filing an H-1B now even if you're eligible for a STEM extension.  If the lottery does take place, then this year may be your only chance - because if you take the OPT extension and there's another lottery situation next year, you might find yourself on a one-year unwanted vacation, or getting a degree you don't need.  If your case gets rejected (ie, you lose the lottery) you may still have time to apply for an OPT extension.  But if you don't try to change your status to H-1B, you're putting your entire future on the possibility that you'll win next year's lotto - but the difference is, you might not have an OPT extension to fall back on.

And if you can't find an employer - here is some helpful advice.

It's that time of year.  You're on F-1 or OPT, about to graduate, or otherwise about to run out of time, and H-1B season is upon you, and you don't have a job.

As an immigration lawyer I talk to people often who are facing the same quandary: why would an employer want to sponsor an H-1B in this economy?

I usually tell people: this is a big country.  There is a willing employer out there.  You have to find it, and once you do, that employer may well be willing to sponsor your green card as well. 

Over the years, we've noticed some trends.  People looking for H-1B sponsorship will focus their inquiries on the biggest companies, like Oracle or Microsoft or Accenture.  Larger companies can afford to be picky, because everyone is applying to them.  The fact that you need sponsorship will usually hinder you in these job applications.

With smaller companies, however, the prospective H-1B applicant enjoys more leeway.  Smaller companies don't have legions of hungry jobseekers spamming their HR department with resumes.  And so they tend to be more willing to go through the extra paperwork involved in an H-1B or even an employment-based (EB-2 or EB-3) green card.

The problem with smaller companies, though, is that they are scrutinized more by USCIS.  Smaller companies are seen as riskier.  They may not have the organizational complexity to justify the H-1B job.  Questions may arise as to their ability to pay the prevailing wage.  They are more likely to be audited.  They are seen sometimes as "third party job shops" - a situation described by the Neufeld Memo of Jan. 8, 2010 as where the employer is the employer only on paper, whereas the H-1B employee reports to work at a third-party client site and answers to the client, not the H-1B employer.  Sometimes USCIS questions whether the job is really a "specialty occupation" (ie, does it even require a bachelor's degree).

That's where the lawyering comes in.  When working with a smaller company (that might not have much experience with the H-1B process) it is absolutely essential to have competent legal counsel familiar with the areas USCIS likes to scrutinize.  For one other success story, click here.

In the IT industry, a little bit of foresight and planning can save a lot of time responding to a nasty Request for Evidence (RFE).  For example, if an IT job will not require travel and the employee will be working out of the employer's business location, it makes good sense to highlight that several times in the H-1B petition.  Why?  Because that way USCIS fears are allayed that the employer is just sending the employee to client sites.  If the employee is going to be primarily working on a client site, then special care needs to be taken in drafting the petition.  Or else a very nasty RFE will issue.

Sometimes the solution is to do a part-time H-1B, especially if the company is newer, less capitalized, or does not have the organizational complexity to support a full-time H-1B.

In any case, working with counsel familiar with the H-1B regulations is essential to the success of a petition filed by a smaller company.  And the applicant should also take pains to ensure that after the H-1B is filed, the company will not "bench" them.  "Benching" is when an employer only pays the employee when there is an active contract, and if the employee is in non-productive status, the employer does not pay anything.  This is illegal and can result in payment of not only back wages to the employee, but hefty fines and other consequences for other H-1B petitions the employer might file.

So a prospective employee staring at the end of the F-1 or OPT rope should not lose heart.  There are jobs out there.  The focus should be on the type of employers who are more likely to be willing to go through the H-1B and subsequent paperwork. 

How to find a job?

• Do not focus on larger companies unless you have truly stellar credentials (Ivy League, high GPA, etc.)
• Go to local networking events.  There are literally hundreds of business unions, meet-and-greets organized by the local chamber of commerce, and other events organized to help businesses interact and mutually benefit from each other.  These are where executives from smaller companies go to network.  You probably won't get your job by firing off resumes from your laptop.
• Plug your resume and credentials on social media such as LinkedIn.
• Consult an immigration lawyer who can advise you about your particular situation and arm you with knowledge you can take to a prospective employer.
• Smaller companies want to know what skill you bring that will enable them to attract larger, more affluent clients.  Learn to research small company profiles and target the ones who seem to be missing what you can offer.

Here is a list of websites to help such applicants begin their job search:

1. My Visa Jobs: http://www.myvisajobs.com/H1B_Visa.aspx
2. Immihelp: http://www.immihelp.com/visas/h1b/filing-h1b-petition.html
3. ehow: http://www.ehow.com/how_2100035_file-h1b-visa.html
4. DOLETA: http://www.foreignlaborcert.doleta.gov/h-1b.cfm#fil
5. H1Base: http://www.h1base.com/visa/work/H1B%20Visa%20Application%20Regular%20Process/ref/1166/ (at the bottom)
6. Happy Schools Blog: http://www.happyschoolsblog.com/h1b-2013-quota-checklist/
7. Path 2 USA: http://www.path2usa.com/h1b-visa-guide
8. Indeed.com: www.indeed.com/q-H1b-jobs.html
9. H1BVisaJobs: http://h1bvisajobs.com/
10. DesiOPT: http://www.desiopt.com/
11. H1VisaJobs: http://www.h1visajobs.com/
12. H-1B Wiki: http://h1bwiki.com/h1b-sponsors/ (Fan Page: http://www.facebook.com/h1bwiki) 
13. OPT Nation: http://optnation.com 
    
    

updated 3/1/2016