NJIT Seminar Q & A

There will be a gap between the expiration of my OPT and the October 1^st start of my H-1B status. I would like to fill this gap with a tourist visa. Do I need to leave the country?

There may not be a need to leave the country in order to adjust status from OPT (F status) to B1/B2 status. There also may not be a need to leave the country before the H-1B becomes valid. However, due to the "last action" rule, it may be advisable to leave the country and obtain the H-1B visa abroad before the October start date.

There will be a gap between the expiration of my OPT and the October 1^st start of my H-1B status. I would like to fill this gap with another status. Can I travel during the gap?

This would depend upon how the gap is filled. The analysis required to respond to this question may depend upon the method chosen for filling the gap.

My OPT expires in January 2009. I plan to apply for H-1B status on April 1, 2008. Can I travel to my country (India) after filing for the H-1B?

Yes, you may be able to travel with your OPT status while the H-1B petition is pending, but you would want to speak to your ISO to obtain information about how you will want to re-enter.

Can I travel outside the US after my H-1B is approved, but before the October 1 start date?

You may be able to do so and many people leave the U.S. and seek an H-1B visa at the U.S. Consulate abroad. If you leave the U.S. and re-enter there may be a high level of scrutiny at the port of entry and if the intent manifested is not consistent with the visa entry sought then the CBP Officer may deny entry.

Can two different employers apply for H-1B status for me? One would be through the Master's cap and the other through the regular cap?

This has been permitted in the past. However, CIS is currently drafting a regulation (for publication in the coming weeks) to address the question of whether a petitioner may file duplicate H-1B filings to increase the chances of obtaining an H-1B number. That regulation will define what is considered a "duplicate" filing. It is expected that a petition filed under both the regular and the master's cap would not be considered a duplicate.

I will be getting my BA in May 2008 and can get a letter to this effect from the registrar. Can I apply for an H-1B on April 1, 2008, before I actually have the degree?

The standard answer is "no" on the grounds that you have to be qualified at the time of application. However, we have been told that last year some petitions were granted under these circumstances. Nevertheless, we do not recommend trying this.

After my F status expires I will have a 60 day grace period. Can I start a period of OPT to start at the end of that grace period?

The regulations require that OPT start within 60 days after the program completion.

I am currently in OPT. Can I start with the H-1B employer and discard the OPT in October?

Once you use the H-1B to verify work authorization with the employer, then OPT will no longer be valid.

I have a Master's degree from my home country (India). Can I apply for the H-1B Master's quote?

No. The Master's Degree specified in the "Master's Cap" must be from a U.S institution.

What do you do if you do not get one of the H-1Bs?

There are a number of alternatives to an H-1B for which you may be eligible. They include "B-1 in lieu of H-1B", J visas (exchange visitors), O visas (extraordinary ability in the arts/sciences/business), P (performing artists and athletes), Q visas (cultural exchange), E visas (treaty traders/investors), L visas (intracompany transferees), and F visas. It's a good ideal to consult with an immigration attorney to find out which alternative might be the most appropriate in your case.

How do I know if I have a good asylum case and can I travel in asylum status?

An asylee is a person who meets the "past persecution" or "well founded fear" definition of a refugee under the law. "Persecution" means "a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. To establish a "well-founded fear of persecution", an asylum seeker must have a reasonable possibility (although not a probability) of persecution. These cases are highly fact-specific. For this reason, consultation with an attorney with experience in this area is recommended. During the pendency of an application an asylee may travel abroad, but not to the country from which he/she has declared ayslum.

Is there a numerical cap applicable to B visas?

No, there is not.

Can I join a multi-level marketing company while in F status?

F-1 students are required to study full-time. They may work on campus for no more than 20 hours per week. Under some very limited circumstances, off-campus employment is permitted. Following graduation, a student may apply for one year of OPT (optional practical training). During OPT, the individual is free to work full-time in any job related to his or her field of study.

Does the 20,000 cap exemption for advanced degree graduates of US universities apply only to "fresh" graduates?

No. The date of graduation is not considered so long as the individual obtained a Master's degree or higher from a U.S. university.

If my OPT ends on December 21, 2008 and my H-1B starts on January 1, 2009, should I stay in the country?

Assuming you have an approved H-1B for January 1, 2009, then you may remain in the US, but you may not work. Individuals with OPT have a 60 day grace period to stay in the US after OPT expires.

How do I move from H-1B to a green card?

We plan to set up a green card seminar in the very near future to give you more information about this issue. In general, though, green cards are obtained either through sponsorship by an employer or a close relative. In the employment-based realm, different procedures are followed depending on the type of job involved and the educational credentials of the individual.

Do you recommend hiring an attorney for the H-1B process or can a student and the employer do this independently?

This depends upon the employer. Some employers have in-house personnel who have the expertise necessary to file an H-1B petition. Others do not. If the employer does not offer this service, we would recommend hiring an attorney; the process is complex and an improperly submitted petition will be rejected. Additionally, there are special documents that need to be prepared by the employer in connection with the filing of the LCA with the DOL. This is called a "Public Access File."

I'm going to graduate in May 2008. If I find a job now, can I apply for H-1B status on March 31, 2008?

The filing period for 2009 H-1B visas (with a start date of October 1, 2008) begins on April 1, 2008. This means that you can send an H-1B petition by overnight mail on March 31^st for delivery on April 1, 2008. You can apply for the H-1B if you have a Bachelor's degree or it U.S. equivalent on March 31, 2008. You can also apply if you have a U.S. Masters or higher degree on that date.

Is premium processing required for the 20,000 advanced degree cap exempt H-1Bs?

No. It is not required. There are different opinions amongst attorneys, however, as to whether it is advisable.

When applying for one of the 20,000 advanced degree cap exempt H-1B visas, does the applicant need to communicate with the employer about the applicability of the advanced degree category?

Absolutely. Questions about the degree level are on the H-1B application documents.

If an applicant has a Bachelor's and Master's from US institutions, does he/she have a better chance of getting an H-1B?

No. It should be noted, however, that 20,000 H-1Bs have been set aside for individuals possessing the equivalence of a U.S. Master's Degree or higher.

Immigration Seminar NJIT - Employment Based Permanent Residence (Powerpoint Slide Show)