With the H1B visa filing season coming upon us once again, employers, graduating students and others that have been waiting should begin preparing to meet the H1B filing rush. Applicants and employers should plan to have any H1B petitions submitted and received by the USCIS by April 1, 2008.
While the USCIS is likely to begin accepting applications on April 1, 2008, the date on which employment and H1B status can actually begin is October 1, 2008. Those whose prior visas expire before October 1, 2008 will be out of status for the period in between.
Since it is impossible to determine how quickly the cap of 65,000 visa will reached, applicants should begin the process now so that their petitions are ready for submission by the end of March.
For those who may not meet the initial rush, there are additional considerations that may offer some hope for later submissions, as follows.
U.S. Master's Degree Holders - H1B visa applicants in this category have a larger number of visa allocations and may take longer to reach the cap.
Chile and Singapore Citizens: Applicants in this category are subject to different H1b caps that may not fill as quickly as the normal cap.
Citizens of Mexico and Canada: These applicants may be eligible for the TN classification under NAFTA that is not subject to the H1B cap.
Citizens of Australia who qualify for the H1B classification would likely qualify for the [E-3 classification] that is not subject to the H1B cap
H-1B Cap-Exempt Employers: Educational institutions and certain non-profit and/or research organizations that are affiliated with educational institutions are entirely exempt from the cap. Qualifying employers in this category may apply for H1B visas at any time without regard to the cap.
Returning H-1B Visa Holders: Those who held H1B visas in the past and left the country for one year or more may avoid the cap if they have not exhausted the 6-year limitation on H-1B stay.
J-1/Conrad 30 Visa Waiver Physicians: Physicians who received a Conrad 30 waiver of the 2-year foreign residence requirement are not subject to the H1B visa cap at all. Visit our Physician Information Center for details.
Health Care Workers: The law provides multiple visa options for health care workers that may provide additional avenues for avoiding the cap.
H-1B visa Options for F-1 Students on Optional Practical Training (OPT)Bridging the Gap
Graduating students with F-1 optional training visas (OPT) that will expire before October 1, 2008 will either need a method to bridge the visa gap or leave the country and return on or after October 1, 2008. The following considerations will help applicants in this situation evaluate their options.
60-day Grace Period: An F1 student is considered to still be in status during the 60-day grace period after the expiration of the F1 optional training visa (OPT).
Returning to F-1 student status: If appropriate, a candidate may apply for admission to an program for the period of the gap by securing a Form I-20 and extending his or her F1 visa status until an H1B visa status can be assumed.
B-1/B-2 Visa Change: If appropriate, those affected can explore whether it is appropriate to seek a visitor visa to cover the period of the gap
O-1 Visa Option: Candidates should thoroughly evaluate whether they qualify for the [O-1 visa] which is not subject to the cap. Note however, that the requirements for this visa are quite significant.
Green Card/Permanent Residency Option: Applicants who qualify for permanent residency through the EB-1 or EB-2 classification may complete the green card process fairly quickly if these classifications remain current in the visa bulletin.
Recent Developments April 2008
USCIS announces that F-1 Optional Practical Training Student Visas (OPT) can be extended from the previous limit of 12 months to a total of 29 months now. This F-1 Visa OPT extension is available for F-1 Students with a degree in science, technology, engineering, or math who are employed in their area of study by businesses enrolled in the E-Verify program. Read USCIS announcement.
The Regulations that address this H-1B OPT Cap Gap issue and extension contain detailed requirements necessary to qualify Read the Regulations..
Call Uche O. Asonye at (312) 795-9110, or Contact us or e-mail him at firstname.lastname@example.org to evaluate your H1B visa options and how to deal with the issues raised by the H1B visa cap for yourself or employees. Our firm attorneys are experienced H1B visa issues, other employment visas as well health care worker visas issues. See HIB Overview for general information.