Category Archives: H-1B

H-1B/STEM Information

According to the Institute of International Education, some 886,052 foreign students were enrolled in U.S. schools during the 2013-14 school year — more than the number of foreign students enrolled in any other country in the world.  In addition to being a pool of potential innovators, scientists, businessmen, etc., foreign students are of great economic importance to the U.S.  In 2013 alone, foreign students contributed some $27 billion to the U.S. economy. However, inflexible and outdated laws may be prompting many of these students to leave the U.S. soon after graduation and take their valuable skills elsewhere.

Currently, student (F-1) visas allow foreign students to remain in the U.S. for just 12 months after graduation. For students who have studied in STEM (science, technology, engineering, math) fields this is extended to a total of 29 months after graduation; this may be why a disproportionately high proportion of foreign students study in STEM and business compared to U.S. students overall. Once this period is over, students must leave the U.S. within 60 days. Many students apply for H-1B temporary work visas but the chances of obtaining an H-1B visa is quite low. Since 2005, the number of H-1B visas available has been capped at 85,000 per year, which is woefully inadequate considering that some 233,000 H-1B applications were submitted this year.

Recently, executive actions by President Obama have proposed to make some important changes. This includes allowing more degrees into the STEM category (which would allow more foreign students to remain in the U.S. for a longer period of time after graduation), extending the maximum time allowed on Optional Practical Training (OPT) programs that many students pursue after graduation, allowing individuals on H-1B visas to change jobs or get promoted with fewer restrictions, and providing more options for outstanding foreign investors, researchers, and founders of businesses to establish themselves in the United States. One change proposed by President Obama has already been implemented, namely the new regulations (effective since May 26 of this year) allowing spouses of H-1B visas to apply for employment authorization. These are positive steps in the right direction but there remains much to be done in order to ensure that skilled and talented foreign students are given effective incentives and opportunities to remain in the U.S. after completing their education.

Foreign Students & H-1B

According to the Institute of International Education, some 886,052 foreign students were enrolled in U.S. schools during the 2013-14 school year — more than the number of foreign students enrolled in any other country in the world. In addition to being a pool of potential innovators, scientists, businessmen, etc., foreign students are of great economic importance to the U.S. In 2013 alone, foreign students contributed some $27 billion to the U.S. economy. However, inflexible and outdated laws may be prompting many of these students to leave the U.S. soon after graduation and take their valuable skills elsewhere.

Currently, student (F-1) visas allow foreign students to remain in the U.S. for just 12 months after graduation. For students who have studied in STEM (science, technology, engineering, math) fields this is extended to a total of 29 months after graduation; this may be why a disproportionately high amount of foreign students study in STEM and business compared to U.S. students overall. Once this period is over, students must leave the U.S. within 60 days. Many students apply for H-1B (temporary work visas), but the chances of obtaining an H-1B visa is quite low. Since 2005, the number of H-1B visas available has been capped at 85,000 per year, which is woefully inadequate considering that some 233,000 H-1B applications were submitted this year.

Recently, executive actions by President Obama have proposed to make some important changes. This includes allowing more degrees into the STEM category (which would allow more foreign students to remain in the U.S. for a longer period of time after graduation), extending the maximum time allowed on Optional Practical Training (OPT) programs that many students pursue after graduation, allowing individuals on H-1B visas to change jobs or get promoted with fewer restrictions, and providing more options for outstanding foreign investors, researchers, and founders of businesses to establish themselves in the United States. One change proposed by President Obama has already been implemented, namely the new regulations (effective since May 26 of this year) allowing spouses of H-1B visas to apply for employment authorization. These are positive steps in the right direction, but there remains much to be done in order to ensure that skilled and talented foreign students are given effective incentives and opportunities to remain in the U.S. after completing their education.

H-4 & EAD

On May 26 of this year, new regulation allowing certain H-4 visa holders to obtain an employment authorization document (EAD) came into effect. Some of the key points to keep in mind are the following:

  • H-4 EADs are not limited by deadlines or number. Any number of filings can be made at any time. As long as you are eligible, you may renew your benefits.
  • In order to file for the H-4 EAD, you must hold H-4 status, and you must be in the United States. H-4 status is only held while a person is in the United States.
  • If you have applied for a change to H-4 status, but do not yet hold that status, avoid traveling outside the U.S. If you travel abroad while a change of status is pending, your EAD will be denied. If you must travel outside the U.S., you can refile an EAD application after returning to the U.S.
  • The H-4 EAD grants unrestricted employment authorization to the holder. You can work full-time, part-time, or on-and-off for any employer. You can also be self-employed, start your own business, and hire other individuals (as long as they are authorized to work in the U.S.).
  • An EAD only grants employment authorization NOT travel authorization. Unless you are a Canadian citizen, you need an H-4 visa stamp issued by a U.S. consulate abroad in order to come back to the U.S. with H-4 status.
  • You may file an H-4 EAD application at the same time as an application to change or extend H-4 status. You may also file the primary applicant’s H-1B extension at the same time as applications to change or extend H-4 status, as well as EAD applications.
  • If you are awaiting decision on a previously filed application for change or extension of status (I-539 form), it is better to wait for the decision on the I-539 form before filing the EAD application. This is because the USCIS cannot guarantee that they will be able to match the EAD application with the pending I-539 form.

To learn whether you qualify for a H-4 EAD or have questions about the H-4 Change of Status and H-4 EAD contact our office at 312-857-5402 for prompt assistance.

FY 2015 H-1B Petition Results and What to Expect

USCIS received 172,500 petitions for FY2015 and more than 20,000 petitions filed towards the Masters quota cap. As predicted, with an improving economy, the demand for foreign talent has also increased.

USCIS conducted a computer-generated “lottery” to randomly select cap-subject cases received between April 1, 2014 and April 7, 2014.  The first lottery they ran was for the advanced degree quota to select 20,000 petitions. Next, a lottery was conducted combining the remaining advance degree cap-subject petitions and the regular cap-subject petitions to select a total of 65,000 petitions.

If your petition is selected in the advance degree lottery and was filed with premium processing, USCIS will issue electronic receipts to the attorney/law firm on file and assign a case number to the petition.  Lottery results for regular cap-subject petitions will be notified via mail.  If your petition is not selected in the lottery, USCIS will return the H-1B petitions with the filing fees to the petitioning employer.

How soon you will learn whether your petition was selected in the lottery?

A majority of the lottery results are notified early on but some petitions (also selected under the lottery) are set aside as “stand by” by USCIS.  The stand by petitions replace petitions that are denied, withdrawn, or found ineligible.  What this means is that your attorney could receive a notification that your H-1B petition was selected several weeks after the lottery has been conducted.

USCIS will first adjudicate H-1B petitions that elected and paid for premium processing set to begin no later than April 28th.  There are two service centers that review H-1B petitions:  California Service Center and Vermont Service Center. It is very important to stay in touch with the HR department of the petitioning employer to get the latest information on your petition.

This information is for general overview and should not be construed as legal advice.  Contact attorney Himani Bhardwaj of HBM Law Offices, LLC about specifics of H-1B process.

 

USCIS Reaches FY 2015 H-1B Cap

Release Date: April 07, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change employers; and

• Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.