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 csun@calvinsun.com

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

http://thomas.loc.gov/cgi-bin/query/F?c112:1:./temp/~c112SfYUTd:e1604:

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).

A time for everything: when and when not to ask for a job

A few nights ago I attended a talk at Tsinghua Law School. The speaker was a Philadelphia attorney, and his topic centered on investment by Chinese in the assets of bankrupt US companies. After the talk, of course, students gathered in a line to discuss with the attorney various things. One such student asked questions of the attorney, then proceeded to ask about the possibility of a job or internship.  The attorney replied that his law firm did offer internships, and for the student to send a resume.

When I observed what happened, I remembered what the Bible says, in Ecclesiastes 3:

There is a time for everything, and a season for every activity under heaven:…
a time to be silent and a time to speak

I know this attorney, and he is a cool guy, pretty easy going. He is not the type to be upset or offended by someone who, in a public setting in front of others, asks about a job. However, others might not be this way. I also don’t know how the other students in line reacted. For this reason, I spoke to the student later, and recommended an alternative approach—namely, to discuss the substantive nature of the talk, inquire about the attorney’s background, then to be sure to get the attorney’s business card. Then, the next day, or as soon as possible, contact the attorney in a direct private conversation and ask about job possibilities. This way avoids the embarrassment, on the part of the speaker or the other students, that could be associated with the original approach.

In other words, always be sure that the setting is correct for the conversation you wish to have.

Job opening: senior accountant, for American Baptist International Ministries, in Valley Forge PA

American Baptist International Ministries (IM) Job Posting Announcement Senior Accountant

American Baptist International Ministries (IM) is seeking qualified candidates to fill the position of Senior Accountant. This is a full-time position located at the Mission Center in Valley Forge, PA.

[note from Calvin: I do not know whether or not they will support a non-immigrant status such as H-1B. I will ask them and if I get an answer, I will post it here. I do not know any more details than what I have posted, but this organization is well thought of, and the parent organization was one of the founding denominations of my church. Also, the person who told me about this opening is a pastor, as well as a staff member there and also a member of my church.Thanks.]

Details:

Join a vibrant ministry that is helping people all around the world come to Christ, grow in Christ, and change their world for Christ!

Role and Responsibility: The Senior Accountant is a Finance Team position within American Baptist International Ministries (IM). The Senior Accountant reports to the Controller of American Baptist International Ministries. Responsibilities include: Supporting the Controller in maintaining the integrity of the general ledger/financial statements; Assisting with compliance reporting including missionary and partner grant reporting; Developing and composing detailed procedures to implement corporate and departmental policies; Providing support for the annual audit; Performing monthly close procedures; Assisting with reviewing, monitoring, reconciling, and analyzing general ledger accounts; Overseeing the fixed assets and prepaid schedules; Cross-training within the Finance Team to provide support to the team during absences; Developing various ad hoc reports as requested.

Education, Experience and Competencies: Bachelor’s degree in Accounting or Business with minimum five years accounting experience required and extensive knowledge of accounting principles. Must possess knowledge and commitment to the mission of American Baptist International Ministries. Requires high degree of integrity and excellent analytical, communication (written and oral including the ability to develop and write detailed procedures/reports), organizational and attention-to-detail skills. Evidence of global and/or cross-cultural experience preferred. Must be proficient with Microsoft Excel, Outlook, Word, and Dynamics/Great Plains accounting software or comparable general ledger software. FRx reporting and non-profit experience preferred.

Compensation: Competitive compensation package including employer paid contributions to a 403(b) retirement plan, healthcare benefits (medical, dental, and vision,) and paid time off (vacation, sick leave, and holidays).

International Ministries serves more than 2,000 volunteer, short-term and long-term missionaries working in 70 countries.

If you are ready to be a part of this dynamic organization, send a cover letter, resume, and name/address/phone numbers of three (3) professional references to: jobs@abc-usa.org This posting will close on December 21, 2012.

Getting H-1B even though job does not require college degree

I sometimes get inquiries from people who are interested in gaining H-1B status. However, they are concerned about the fact their job does not require a bachelor degree.

I tell them that I have been able to get H-1B status for such people in the past. While a bachelor degree requirement can be important in a job description for H-1B, such a requirement is not mandatory.  That is, even without such a requirement, a person still can get H-1B status for such a job. The key, though, is to show that the job is sufficiently complex so as to require such a degree.

How can you do so? Look at the job description, and analyze why certain aspects are complex. Also, look at listings for similar positions at other companies, for example on web sites such as monster or careerbuilder. Another method is to get an expert opinion letter. In one of my cases a client support agent job at a software company had no bachelor degree requirement. However,  I provided a job description and other information to an associate of mine, a retired chief information officer at several major US companies. This person wrote a letter after reviewing the information, and stated his opinion that the job was complex enough to require a bachelor degree.

As a result of my efforts, and this letter, my client received H-1B status.

In other words, even if your job description doesn't require a college degree, you still might be able to get H-1B status through that job.

This information does not constitute legal advice.

Applicability of the SEVIS fee

If you are in F, M or J status, you might be subject to a SEVIS fee. This fee is used to support the Student and Exchange Visitor Information System, a computer system developed after September 11, 2001.  Generally speaking, new persons in such status are subject to the fee, while returning persons are not. More importantly though, this fee is separate from any fees imposed by the educational institution, State Department visa fees or United States Citizenship and Immigration Services (USCIS) filing fees.

To pay this fee online, visit https://www.fmjfee.com/i901fee/index.jsp When you finish, you will be given a confirmation number and the chance to print a payment confirmation page. You should bring that page to your visa interview.