Friday, December 28, 2012

Do not file too early for H-1B!

In other blog posts here, I have explained the significance of October 1 and of April 1 for those of you who seek H-1B status, and who also are subject to the H-1B cap.

In this post, I want to emphasize that while filing early is important (that is, such that the government gets your petition on April 1 or as soon as possible after that date), filing too early, that is, prior to April 1, for an October 1 start date, will doom you.

In particular, if you are using an express courier such as Federal Express or UPS, I strongly suggest that your  employer avoid being "cute" by saving money on a second-day or third-day delivery option. Rather, pay the extra money, mail it the day before April 1 so that it does arrive April 1, and not before.

Why do I make this statement? Suppose  your employer instead mails two days before April 1 and specifies the second day option. Or, suppose your employer mails three days before April 1 and specifies the third day option. Suppose also that the employer is thinking that in both cases, the package will arrive no earlier than April 1.

In both cases, however, the danger exists that the courier might still be able to deliver the petition early, that is, prior to April 1. In this case, because by law you may request a starting H-1B date a maximum of six months in advance, the government will deny your petition. They will do so because any date before April 1 is more than six months before October 1.

When a courier says "second day" or "third day" delivery, that courier most likely does not mean the package can be delivered only on the second or third day respectively, and no earlier. Rather, it refers to the latest delivery time. If a courier has the ability, quite likely that courier will deliver early.

For this reason, your best option to mail the day before, with next day delivery, assuming that next day is in fact the earliest possible delivery time. Trying to save a few dollars is not worth the risk of a denial due to an early filing.

You are welcome to contact me at

Thursday, December 27, 2012

Getting ready for your H-1B filing

Congratulations, your employer has agreed to file, on your behalf, an H-1B petition.  If you are subject to the H-1B cap, and if (as is usually the case) the cap is full during the time you learn this news from your employer, then your employer must wait until the next April 1 (at the earliest) to file. Because of the cap, however, your employer and attorney should look to file actually on April 1 itself or as soon as possible thereafter.

For this reason, to avoid delays in filing, you will want to be sure that you yourself are prepared with the necessary materials that your employer or the attorney will need from you. These materials include the following, and assume you are seeking a change of status from F-1 to H-1B:

Immigration documents
You should have the following immigration documents available:
  • passport information page (i.e. the page with your photo, name, date of birth etc.)
  • visa stamp for your most recent entry into the US
  • latest I-94 document, front and back
  • latest I-20 document
  • employment authorization card, if applicable

Educational/professional credentials
You should have official copies of relevant undergraduate and graduate transcripts (note that a diploma by itself is insufficient, according to H-1B regulations, because it will not show courses taken or dates attended). An official transcript is one that is issued by an office of the university, and such office is usually the registrar. The transcript usually will have the insignia of the school. In other words, a “do it yourself” printout or screen print of a transcript, such as from Blackboard or Banner software, will not meet government regulations. 

Because requests for transcripts take time, you will want to make your request as soon as possible.

You also may want to include a letter of attendance, signed by the registrar, to validate the transcript, and also repeat information on dates attended and the fact that you graduated.

Make sure you also have an up-to-date resume available.

Please see below regarding photocopies.

Job description, job requirements, title and salary
Although the job description, title and salary should come from your employer, you still should review that information. Often the job description does not really reflect what a person really does. In particular, when you review the description, make sure it encompasses all your duties. Make sure it shows the complexity of your job, because such complexity is an important factor in determining whether you will be approved or not.

Any document that is in a non-English language will need to be translated into English. More specifically, the translation must be a certified one. That is, the English translation must come with a signed statement by someone, and this statement should identify the document, should say that the person is fluent in English and the other language and that the translation is an accurate one.

The person who certifies the translation should be someone other than yourself. However, you yourself still can translate the document into English if you wish and are able to, before the certifier reviews the translation. That is, the certifier need not be also be the translator.

I have never been asked for original copies of any documents. For this reason, I always provide photocopies of documents. Needless to say, the photocopies should be accurate reproductions of the original, and neither the original document nor the photocopy should be altered. Doing so is a serious offense, and could result in severe consequences.

You are welcome to contact me at

How to talk with your boss about getting H-1B status

I have spoken with a few people who are in their OPT, and who have told me that they are uncomfortable with bringing up, with their boss, the topic of getting H-1B status.  If you feel this way, here are some thoughts and suggestions.  have never had to ask for H-1B status, but believe, based on my experience in consulting about and teaching classes on communication, that my suggestions will be helpful.

First, remember Sun Tzu, and his advice, from "The Art of War," about knowing the enemy and knowing yourself.  In other words, look at the situation from your boss's perspective. In particular, ask yourself how your boss and your company would benefit from petitioning for H-1B status for you.  Even though you yourself would benefit, that idea should NOT be the basis for talking to your boss.  In other words, avoid talking about why you yourself would benefit from H-1B. Simply put, your boss probably doesn't care.

Second, try to get away from thinking that H-1B is a matter of "you versus your boss."  Instead, think of the issue as being one where you and your boss have a common objective, i.e. the need to solve an immigration problem--namely, that unless something happens, you will need to stop working at a certain point in the future, namely, when your OPT ends.

So if we combine these two ideas, we can bring up H-1B in the context of alerting our boss to a potential problem. The boss needs to realize that we might not be there in the near future.  On the other hand, if your continued presence is something the boss wants, then you can discuss how to resolve the issue--namely, via H-1B status.  By getting this status, the boss avoids disruption in work, continues to have someone to work with clients or customers and gets to keep a valuable employee.  You also look like a genius to your boss, in that you have identified a problem, but also have a way to solve it, thereby making your boss's life easier.

This previous paragraph illustrates my third point: do not think, by discussing H-1B, that you are asking for charity or a handout from your boss.  Think of yourself as someone who is bringing value to your company and to your boss.  Therefore, the decision about H-1B, from your boss's view, should simply make good business sense, because the cost of doing it is far outweighed by the value you bring.

If your boss is American, you can try the "bad news / good news" approach, which is a common form of American humor, and one therefore that your boss will recognize.  Your conversation might go like this: "Boss, I have bad news and I have good news.  The bad news is that unless we take action, I will need to leave this job on or before [date], due to immigration requirements.  The good news is that I know the action we need to take to resolve the problem."

I hope these suggestions are helpful to you.

You are welcome to contact me at

H-1B: early filing date vs. full three years of status--cannot have both

If you are seeking H-1B status, and you are subject to the cap, then you may want to know that

you can have an April 1 H-1B filing date, OR you can have a full three years of H-1B time, BUT YOU CANNOT HAVE BOTH.
Those of you who plan to file a cap-subject H-1B petition as early as possible, i.e. on April 1, should be aware that doing so will deprive you of time at the end of your H-1B period. That is, you will not be able to get your full three years of H-1B time, but rather will have that time reduced by about two weeks.  Conversely, if you want to have the full three years of H-1B time, you will not be able file right on April 1, but would need to wait until perhaps April 10 or 11.
In other words: you can have an April 1 filing date, or you can have a full three years of H-1B time, but you CANNOT HAVE BOTH.

The reason for this situation involves the relationship between the labor condition application (LCA) and the H-1B petition, as well as the processing time for the LCA. As yu may know, the LCA is the document in which your employer certifies that you are being paid at least the prevailing wage for your job and your geographic location.

Like the H-1B petition, an LCA can be filed up to six months in advance. In addition, like the H-1B petition, an LCA can request a period of up to three years.  However, the LCA must be filed and certified, and then included with the H-1B petition. That is, the LCA filing and certification must occur before you can file the H-1B petition.  Furthermore, the LCA typically requires about six to seven business days for the certification.  This processing time prevents you from getting a full three years of H-1B should you file on April 1. Here’s why.

Let’s say that you wanted to file your H-1B petition on April 1, 2013 (and let’s pretend April 1 was a business day, even though it was really a Sunday).  Doing so would allow you an H-1B period of October 1, 2013 to September 30, 2016.  However, the H-1B filing would need to include a certified LCA . Therefore, in order to have the certified LCA by April 1,  you would need to submit the LCA material about seven business days in advance of April 1, for example March 20.

If you submit the LCA on March 20, then specifying an October 1 LCA start date (to match the H-1B start date) would be IMPOSSIBLE, because October 1 is more than six months from March 20.   Rather, the latest that the LCA period could start would be September 20, and the longest it could run would be to September 19, 2016.  The government will not allow you have H-1B time that exceeds the end of your LCA time, so they will shorten your H-1B to end on September 19 rather than September 30.  In other words, you would lose 11 days of time at the end of the H-1B period.

If, on the other hand, you wanted a full three years of H-1B time, starting from October 1, 2013, you would need to submit your LCA no earlier than April 1, 2013.  You then would probably receive the certification around April 10, meaning that the earliest you could file your H-1B petition would be April 10 or later.  In this case, you could get a full three years. However, you would not be able to file right on April 1, but rather on April 10 or later, and therefore would run a greater risk that the cap will fill up in the meantime.

Your employer or attorney may not even offer you this decision, but knowing about these options still is important for you.
(note: this material previously appeared as part of a larger post, but I thought the topic was important enough to stand on its own.)

Sunday, December 16, 2012

Your OPT ending date and its effect on your “cap gap” options

Many people who are in their optional practical training (OPT) phase, following graduation, find that they have a gap of a few months between the end of OPT and the beginning of their H-1B job. This situation, known as “cap gap,” arises because of two issues, namely
  •           many OPT programs end in winter or spring
  •           during the federal October 1 – September 30 fiscal year that the OPT expires, the H-1B cap is already full

Therefore, assuming the person is subject to the cap, and assuming the current fiscal year cap already is full, and assuming the person’s OPT subject is non-STEM related, then   the person cannot work in H-1B during that fiscal year, but instead must wait until the next October 1, assuming his/her petition was or will be approved.
Therefore, the cap gap often presents a challenge as far as maintaining both legal status as well as work authorization under the person’s OPT.  

Depending on a person’s OPT ending date, a person can have one of three situations with regard to maintaining status and work authorization, via cap gap relief, between the end of OPT and an October 1 H-1B start:
2.       The person can maintain status, but not OPT work authorization
3.       The person can maintain neither status nor OPT work authorization

Let’s look at each situation in more detail.

1.       Ability to maintain both status and OPT work authorization

This person has the best situation. In American English, one could say this person, alternatively, “is on Easy Street,” or “is in the catbird seat,” or “has it made in the shade.”

The person has this situation because his or her OPT ends on or after April 1, the beginning date for filig H-1B petitions for the following October 1 (see for an explanation of this April 1 date). Therefore, this person is eligible for the cap gap extension. In this situation, the employer must file a nonfrivolous petition on or after April 1 and on or before the expiration of OPT, and specify an October 1 H-1B start date. Also, the petition must ultimately be approved. As a result, the person will have F-1 OPT status, as well as work authorization, automatically extended to September 30.  In this way, the person has continuous lawful status and OPT work authorization until the end of the fiscal year, at which point the person’s H-1B status would begin.
Ability to maintain status, but not work authorization

This person has a second-best situation. His or her OPT ends prior to April 1, but the grace period ends on or after April 1. As a result, this person is eligible for a modified cap gap extension. The employer, as above, must file a nonfrivolous H-1B petition on or after April 1, and on or before the end of the person’s grace period. Assuming that the petition ultimately is approved, the person will have an extension of F-1 status from the end of OPT until the beginning of the next fiscal year, October 1, at which point H-1B status would begin.

However, because the person’s OPT period ended prior to the April 1 earliest filing date, the person cannot receive a corresponding extension of work authorization. This person, therefore, may lawfully remain in the US until the start of H-1B, on October 1. However, the person must stop the employment that was based on OPT.
  Ability to maintain NEITHER status nor work authorization

This person, unfortunately, has the worst situation of all. Specifically, not only does this person’s OPT end prior to April 1, but so too does the grace period. This person is ineligible for ANY form of cap gap relief. The person cannot receive an extension of OPT work authorization, nor can the person receive an extension of lawful status. Rather, the work authorization ends when the OPT ends, and the F-1 status ends when the grace period ends. This person can leave the US before the end of the grace period, seek consular processing for an H-1B visa, then re-enter later on that visa (keeping in mind that entry can occur up to 10 days prior to start date).  Otherwise, the person will need to find some other lawful status in order to stay in the US.

I hope this information helps you. Should you have questions, you may reach me at

Wednesday, December 12, 2012

Understanding “cap gap” and the “cap gap extension”

If you are considering H-1B status, two concepts you should know, if not already, are “cap gap” and the “cap gap extension.” Both of these terms relate to the timing of the end of your optional practical training (OPT) and the start of you cap-subject H-1B job, assuming the H-1B cap is full during the current fiscal year.

For the moment, let’s ignore the 60 day grace period that follows the end of your OPT. Also, let’s consider only one-year OPT programs.

Let’s say that you graduated in May 2012, and then began an OPT that will end on May 31, 2013. Because your boss didn’t know you well enough to file H-1 for you for October 2012, and because the cap is full until September 30, 2013, the boss now decides to file H-1B to start in the next fiscal year, beginning October 1, 2013. A smart boss would file at the earliest possible date, which is April 1, 2013.

Here is the problem: as you must know, you are required to maintain valid status at all times while in the U.S. However, your OPT will end on May 31, 2013, but your H-1B job doesn't start until October 1, 2013. In other words, you will have a gap of four months during which you have neither F-1 status nor H-1B status—that is, a gap in which you will have no status at all. In the absence of any special provisions, a person facing such a situation, in order to avoid status problems, would most likely have to leave the U.S., perhaps to the home country, then return later to begin the H-1B job (keep in mind that such a person is permitted to enter the U.S. up to ten days prior to the start of H-1B). But such an alternative, while permissible, can be expensive and bothersome. This situation is what is known as the “cap gap.”

To address this situation, the government implemented a “cap gap extension.” This arrangement solved the “gap” between the end of OPT and the beginning of H-1B. In order to qualify for this extension, an H-1B petition had to be timely filed. That is, it must be filed on or before the end of the OPT. Of course, it also had to be filed on or after April 1, and not before April 1, because the cap is full for the current year.  The petition also must be nonfrivolous, that is, it must have a reasonable basis for being approved.

If such a filing is made, then even though OPT ends while the petition is being reviewed, no status problems arise. If the petition ultimately is approved, then the person’s F-1 status and the person’s work authorization is automatically extended until September 30. Therefore, the person will have valid status even during the former gap, and will have work authorization during the former gap. Then, the day after September 30, which is October 1, the person would begin in H-1B status.

Notice that in order to gain the advantage of cap gap extension, the employer must file the petition prior to the end of OPT. But at the same time, the employer must wait until April 1 or later to file the petition. Therefore, OPT must end after April 1.

If, on the other hand, a person’s OPT ends prior to April 1, some other issues arise, and I will address them in another post.

I hope this information is helpful. You are welcome to contact me at

The importance of April 1 and October 1 for H-1B status

You may be aware that the dates October 1 and April 1 have significance for H-1B status. In this post, I will explain why they do.

Each fiscal year, Congress has a limit on the number of petitions that can get H-1B approval. This federal fiscal year runs from October 1 until September 30 of the following year. The “year” designation of a particular fiscal year is the ending, not the beginning year. Therefore, “fiscal year 2013” is that year that begins October 1, 2012 and ends September 30, 2013. If, during a particular fiscal year, the cap is reached, then the government is unable to approve any more H-1B cap-subject petitions, and therefore no cap-subject person will be able to work during that fiscal year. Rather, that person will have to wait until the beginning of the NEXT fiscal year, when a new set of H-1B approvals is available and new cap comes into existence. That next fiscal year begins on October 1.

In addition, the H-1B procedure is such that petitions can specify a requested starting date that is up to six months in the future. Therefore, because the earliest time a person can start work in a new fiscal year is the beginning of that year, October 1, then the earliest time an employer can file a petition is six months prior, that is, April 1. If an employer files any earlier, for example on March 31, the petition could not be approved for an October 1, start, because October 1 is more than six months from March 31. In fact, if the cap is full for the current year, and the government receives a petition in the current fiscal year, because perhaps an attorney or paralegal filed the petition too soon, then that petition will be denied.

Given this information, what should you keep in mind for H-1B?

-          Do not file too early
If the cap is full in the current fiscal year (as is true now), then the government should not receive your petition earlier than April 1. If it does, the government will deny your petition. In that case, your filing fees are gone, i.e. the government will not refund them. Therefore, if you are sending your petition via courier such as Federal Express, send your petition AT MOST the day before, no more. Yes, Federal Express offers a lower rate for its “two day delivery” service, and you might be tempted to save money and send the petition two days prior  to April 1. The problem though, is that Federal Express, even though specified a two day delivery, still nonetheless COULD deliver your package in only one day, if they are able. That is, the “two day” specification is an outer limit, not a minimum waiting time. The best approach, therefore, is to file the day before, and ask for overnight delivery.

-          There is no H-1B filing “deadline”
People often ask me, “Calvin, what is the deadline for filing an H-1B petition?” I respond by saying that there is no “deadline.” That is, the government does not end its acceptance of cap-subject petitions based on a fixed date. Rather, it ends its acceptance of such petitions when the cap “runs out,” that is, when no more cap spaces are available. Therefore, the important thing is to file your completed petition as soon as you possibly can.

Understanding the H-1B “cap” 配额

You probably have heard at least something about the H-1B cap 配额. In this post, I will explain it in more detail, because the cap might be important for you if you seek H-1B status.

The cap was established by the U.S. Congress, via a provision of the Immigration and Nationality Act (INA). Each fiscal year (that is, the federal fiscal year, which runs from October 1 to September 30 of the following year), the number of H-1B approvals is limited to 65,000. When a new fiscal year begins, then a new set of 65,000 H-1B approvals becomes available. Unfortunately, though, the real cap isn’t 65,000, it really, for most people, could be as low as 58,200. The reason for this lower number is that up to 6,800 of the total 65,000 are reserved for nationals of Chile and Singapore.

Several groups of people are not affected at by the cap, or are only partially affected. The first group are those who will be working for an employer which, by law, is exempt from the cap—that is, a cap-exempt employer. Examples include government research organizations such as the National Institutes of Health, nonprofit research organizations and institutions of higher education.  Note that simply being a nonprofit organization, or simply being a non-government organization (NGO) does not by itself make an employer cap-exempt.

The second group not affected by the cap are those who, during the previous six years, had H-1B status at an employer who is subject to the cap (that is, a “cap-subject employer”). These people, should they again seek H-1B status, will be exempt from the cap even if the employer is cap-subject, because they already were counted under the cap. However, their H-1B time is limited to six years less their previous H-1B time. 

For example, suppose a person previously spent two years in H-1B status with a cap subject employer, then returned to school, in F-1, for a year. This person, following school, could change back to H-1B status, and would be cap-exempt even if the employer itself were cap-subject. However, this person would be limited to four years of H-1B cap-exempt time. This four year period arises because, as you may know, a person normally is limited to a maximum of six years of H-1B status, after which (if no green card petitions are begun) the person must leave the U.S. for at least a year before being able to return for more H-1B time.

The third group not affected by the cap are the first 20,000 people who have a master’s degree or higher from a U.S. university in a field related to their proposed H-1B job. By law, according to the INA, the petitions of these 20,000 people simply do not count against the cap. For example, suppose that during a fiscal year, no one from Chile or Singapore files a petition, meaning that the cap really is 65,000. Suppose 65,000 approvals are given to those who have only a bachelor degree. Even so, 20,000 people with master’s degree or higher from a U.S. university in a field related to their H-1B job can still be approved. Or, suppose the first 20,000 petitions the government receives are from such master’s degree or higher people. Nonetheless, the cap number will STILL be 65,000 even after these 20,000 are approved. This feature is called the “master’s cap exemption.”

The government tracks the cap based on the number of petitions it receives. Once it receives 65,000 petitions, it publishes that fact and then refuses to take any more. If the government receives more than 65,000 petitions on that last day, it will choose by lot those petitions that will be accepted under the cap.
Given this information, and assuming neither you nor your employer are cap-exempt, how can you benefit from this information?

-          Ask your employer to file as soon as possible
The earliest date to begin filing petitions is April 1. That is, the government will begin accepting petitions as early as April 1, for people to able to start H-1B jobs the following October 1. Obviously, the longer your employer takes to file, the more spaces will be taken and the greater the risk that the cap will run out before your employer can file. For this reason, you might want to (tactfully) remind your employer. Also, make sure you have all the materials that your attorney, or whoever is preparing your petition, is asking for.

-          Save your money, because premium processing DOES NOT help with regard to the cap
People who file H-1B petitions have the option of selecting premium processing. Under this arrangement, the government can decide on the petition within 15 calendar days, as opposed to the normal two to three months. Premium processing has its uses, but be aware that getting your petition to the government “faster” so as to “beat the cap” is NOT one of them. That is, premium processing does NOTHING to ensure that your petition will be received faster than another non-premium processing petition. Rather, all it means is that assuming your petition even is accepted under the cap, that will receive the promised service. However, those promised services will never occur if the petition is too late.

In other words, if you (or your employer) pay for premium processing because you think your petition will get there faster, you are wasting your money.

I hope this information is helpful. You are welcome to contact me at

Saturday, December 1, 2012

Proposed immigration bill in the House of Representatives, as pertaining to STEM graduates and others in F-1

This bill, H.R.2161, introduced in the House of Representatives, is designed to improve immigration procedures, including for graduate students in science, technology, engineering and mathematics (STEM). Please note that this bill is not yet law, and might not become law in its current form. Nonetheless, I have summarized some important points below.

1.       The bill creates a fourth category in the employment-based first preference (EB-1). Along with the existing “alien of extraordinary ability” (EB-1a), “outstanding researcher or professor” (EB-1b) and “multinational executive or manager” (EB-1c), the bill will create a new EB-1d category, for advanced graduates in science, technology, engineering or mathematics. The person would need a job offer, that is, no self-petitioning is permitted as is the case for a national interest waiver.

2.       This EB-1d category would NOT require the same lengthy, cumbersome labor certification as is required for certain current EB-2 advanced degree holders. However, an employer still would have to certify, in the same way as an H-1B hire, that the person is being paid at least the required wage, defined as the higher of the actual wage or the prevailing wage.

3.       Persons in F-1 status, regardless of whether STEM or not, would be considered to have dual intent, similar to H-1B or L-1 status holders. That is, they would no longer have the burden to prove non-immigrant intent. In other words, the fact that an applicant for F-1 status has immigrant intent, for example via having applied for adjustment of status, cannot be the sole reason for denying such an application.

The most significant implication, for STEM graduates, is the classification as an EB-1. Such a classification significantly shortens their green card waiting period, compared to EB-2, because the EB-1 category, according to the State Department visa bulletin, always has been “current,” that is, there is no backlog as with EB-2.

How are the NBA 24-second clock and H-1B related?

You probably don’t think of the NBA 24-second clock as being related to your length of H-1B time in the United States, but actually the two are related. Understanding why can help you plan your approach regarding H-1B.

In the NBA, the offensive team generally has up to 24 seconds to either make a field goal or to at least cause the ball to touch the offensive rim. If they fail to do either, then they lose possession of the ball. However, if the ball touches the rim, and the offensive team then gains control of the ball, they get a new 24 second clock.

H-1B status has its own version of a 24-second clock. In this case, the clock is a six year clock. That is, in the absence of other actions, most notably the start of a green card process, a person is H-1B status is limited to six years in the U.S. in such status. At the end of that six years, the can get additional H-1B time in the U.S. but first must leave the U.S. for at least a year before returning. Upon returning to the U.S., the person will be subject to the H-1B cap if the employer is so subject.

If a person was in cap-subject H-1B status for fewer than six years, then leaves the U.S. for at least a year, then that person has two options should he or she return to the U.S. and seek H-1B status with a cap-subject employer.

First, the person could legitimately seek another six years of H-1B. Just as an NBA team can get a new 24 second clock if the make an offensive rebound of a shot that touches the rim, so too can this person get a new six years, because the person spent at least one year outside the U.S. However, in exchange for getting a full six years, the person will need to be subject to the cap. That is, the employer must file the petition soon enough to be in time, before the cap is reached.

Alternatively, the person can claim an exemption from the H-1B cap, due to having been counted already, during the person’s earlier time in the U.S. However, in this case, the person is ineligible for a full six years of H-1B time. Rather, the person is limited to the remaining unused H-1B time from the previous stay.

For example: a person spends two years in cap-subject H-1B status, then leaves the US for one year.  Upon returning, the person can choose either to have
- a new six years of H-1B time, but will have to deal with the possibility of a cap full situation, because the person will be subject to the cap
- the remaining four years of H-1B time that was unused from the earlier stay, but in return need not worry about the cap, i.e. be cap exempt

In other words, the person cannot have his cake and eat it too. The person cannot have exemption from the cap and also a full six years. Rather, the person will have to choose between cap exemption (and get less than six years) or get a full six years (but be subject to the cap).