Tuesday, January 28, 2014

More about I-20s, Visas, Internships, Co-ops, CPT, OPT, STEM OPT Extensions and H-1Bs.

What is an I-20?

A Form I-20 (or just an "I-20") is an official document that is issued by your university and attached to multiple entities, namely, the Department of Homeland Security (DHS), Immigrations and Customs Enforcement (ICE), United States Customs and Immigration Services (USCIS) and the Student and Exchange Visitor Information System (SEVIS). This document contains supporting information that is relative to all these entities so that you can obtain something called a VISA and so that they can track your duration of stay and make sure you are eligible to be in the United States.

The most important pieces of information on your I-20 are: your SEVIS number (which is reported to SEVIS and USCIS when the university generates your I-20), your university, the university number, the degree granting program, and the duration of the program along with the projected costs of the program for a year.

The United States consulate/embassy in your home country uses this document to make a decision on whether you can be granted entry into the United States, on the basis of your academic credentials and your financial status as outlined in the I-20, and which are justified and proven by the financial documents you furnish at the in-person Visa Interview.

Why is the duration mentioned on the I-20 so important? This is because your degree granting program is generally governed by something called a Statute of Limitations, which specifies a time frame in which you are supposed to complete your program and obtain your degree. For most masters I-20s that I have seen, it is thirty-six (36) months or three (3) years, and for most PhD programs or doctoral I-20s, it is seven (7) years. If you are not able to finish your program in this time-frame, your graduate program director needs to request an extension to the Statute of Limitations justifying the extension and why you need more time. One this is done, the graduate dean signs off on this and USCIS and the other agencies are notified by the issuing of a renewed I-20 through the SEVIS.

What is a Visa?

A visa is a document that grants you entry into a particular country subject to approval by the immigration officials at the port of entry of that country. There are multiple visa types, but for the purposes of this discussion, we will consider just F-1s, J-1s and H-1Bs and their dependent visa types. So getting back to our discussion on US visas, a visa tells the USCIS (United States Customs and Immigration Service) Officers at your port of entry (the first city in the United States where you land) if you are cleared to enter this country and till when you can re-enter the US after exiting it. The validity duration on your visa is for re-entry only. It does not have any bearing on how long you can stay in the country, if you can work or not or anything else. Can you enter? Yes or no - this is what the letter "M" indicates, if printed on your visa. That letter "M" indicates that your visa is a "multiple-entry" visa, one that allows you to exit and re-enter the US at will, as long as the end date printed on your visa sticker hasn't passed. And if you can enter, can you come back if you leave the country? Yes or no - if your visa doesn't have the letter "M" printed, but has an "S" instead, that means you have been issued a "single-entry" visa. If you have been issued a "single-entry" visa, you would need to pay the visa processing fee again, reappear for the Visa Interview at a consulate/embassy outside the US and get the visa re-stamped, every time you exit the US. These are the only purposes that a Visa serves, as far as you need to be concerned with at this stage. For USCIS, ICE (Immigrations and Customs Enforcement, a sub-agency of the USCIS) and DHS (Department of Homeland Security - the sub-agency of the USCIS tasked with ensuring that internationals like you and me aren't overstaying in the US beyond their validity period of legal status in the US), it gives them a whole lot of information as to who supported or sponsored the visa (sponsored, in case of a company that filed for your H-1B petition, or supported, in case of your university, in case you're a full-time international student on an F-1 visa), whether you are permitted to work and eventually, your visa control number if linked back to your status with USCIS through a ton of other documents, like your Form I-20 (the document that officially signifies an "admit" or your acceptance into a program offered by a US university).

An F-1 visa is issued in the university’s name to a student who is supposed to be registering for a full-time program of study at a university (typically nine credits every semester), at a particular level of study (which can be Bachelors, Masters or Doctoral).

A J-1 visa is issued to someone who is coming into the United States on an exchange visitor program for a short duration of time (there are loopholes or other things which we will not deal with here).

A H-1B (for the most part is a work permit, but it can also refer to the visa used to enter the US to work for an employer temporarily) is issued to someone who is in the United States already (or in the case of an H-1B visa, desirous of entering the United States) for the purpose of being eligible to work for a particular company as a non-resident alien. More details about the H-1B and H-1B approval process is given in the 2nd part of this post.

What is CPT?

Curricular Practical Training or CPT, as the name suggests, is a method for the student to add some valuable industry experience to the program that he/she is attending. It is intended to give the student some hands-on, real world experience in addition to what they have learnt in the classroom and open them up to how things work in the real world.

What you should not get confused with (and normally students do) is the usage of the terms internship and co-op. It is a misconception that an internship is associated with a CPT and co-op with an OPT. This is incorrect.

Internship-related information that is common for people who start their MS in the Fall and in the Spring:

You can intern in a company, in a position related to your field of study and your degree program, after you have completed 9 months of stay as a full-time student in the US. However, in order to get an internship at that time, many companies require that you should be coming back to school for at least another semester, that you've got to go back to school after the period of the internship finishes. Some don't, and those companies would generally allow you to intern (or co-op), during your final semester too, on a part-time basis. For an explanation of how a co-op is different from an internship, keep reading below.

In what respect are getting internships different for people who start in Spring, different from those who start their MS in Fall?

Getting an internship after your 3rd sem (assuming that you have started your MS in the Spring) might be a bit tricky because you'll be competing not only with your fellow Spring batchmates, but also people who've come during the Fall semester after you. That makes for a huge number, and while ideally there should be no preference of one over the other, Fall folks might be preferred at some places because they're going to be longer in school than you, and hence some companies might prefer taking them on after an summer internship as a co-op, rather than having to hire them immediately in a full-time role. For explanation on what a co-op is, keep reading ahead, it has been explained below.

Quote:Spring students also meet this criteria, right? They'd also be going back to school for their 4th semester (Fall).

Yes, that's correct.

Quote:Is it possible for Spring MS entrants to intern in the following Spring rather than Summer? (after studying in Spring and Fall).

It is. But then, what you'll be doing in such cases, is a co-op and not an internship.

So what is the difference between a co-op and an internship?

An internship during Fall/Spring can be classified as either an internship or a co-op:

Internship - you work in a company for less than 20 hours per week during Fall/Spring, and you are enrolled in at least 9 credits (full-time courseload).

Co-op - you take a sabbatical of one semester to work full-time for up to 40 hours per week at a company. You do not enroll in any credits towards your degree in this semester, but you will have to enroll for some special co-op course that is the equivalent of full-time courseload. This course might be for-credit (1-3 credits) or might not be credited at all. In any case, this course indicates that you're still enrolled and that you satisfy the F-1 visa requirement of full-time workload.

Most schools allow Fall/Spring internships, but not many offer Fall/Spring co-ops with a sabbatical from school. Also, you'll be working during your co-op on your CPT (explained further in detail below), which can be a maximum of 11 months. So, that means if you intern full-time (40 hrs/wk) during summer and then get a co-op (or for that matter, a Fall/Spring internship), you will be able to do this only once - 3 months for the summer stint and 5 months in the Spring/Fall.

What are these summer internships that everyone keeps talking about so much? Are they the same as co-ops?

Well, in a way, yes. What we call as summer internships are nothing but full-time co-ops that usually stretch for 10 weeks. In these, you would mostly be working at the company full-time without taking any classes in summer and hence it will be counted as a part of your full-time CPT.

Usually, it's easier to get into a summer internship first and then be continued for a co-op during the Fall. This is because most companies do hire for the summer, but the case isn't so in Spring/Fall for the co-ops.

For a co-op, companies mostly prefer to continue with people who've already worked at the same place in their internship. And the problem's worse in Spring, because companies are generally loathe to hire at the end of the accounting year in Nov-Dec. Not to discourage you Spring entrants, but that's how it is. Hence, by all means, do try to get a Spring co-op/internship if you can in your 3rd semester, but don't be too hopeful. Therefore, I'd say your best chance to get one is in the summer after the 3rd semester, so you can try to get hired for a co-op after summer in the Fall.

Fall co-ops/interns might be in school over the Spring sem as well, so that means that person might be allowed/able to work on CPT status for almost the entire CPT period. Now, interns are generally paid less money (in most, not all, cases) as compared to their full-time counterparts, and also don't need to be paid other benefits such as insurance coverage, 401K, etc. So getting someone on as an intern for a longer period is definitely preferable for a company (more so a small or a medium-sized one) as compared to hiring someone full-time. And chances are, even if the intern(s) hired are not as experienced or knowledgeable as someone that might've been hired for an equivalent full-time role, the company can probably hire multiple interns at the cost of that one full-time employee. And even then they might end up saving some money. So it is always in the company's interest to try to keep someone in an intern role for as long as possible. And that's not really a bad thing for you either - as long as you get the work-ex and are completing your degree concurrently. But if you're worried about the fact that you're probably not gonna earn as much in an internship, then you shouldn't take any such offer up.

Quote:1. are co-ops offered in all semesters of the year?

Yes, they are. But, as I said earlier, summer co-ops are nothing but summer internships wherein you do not take any courses towards your degree, and can work at some company for up to 40 hrs/wk.

Quote:2. Am I right in assuming that not all univs have co-ops?

Correct. And even with those that do, they have different rules. Furthermore, every department or program might have its own set of rules, so it's hard to generalize. For example, some univ might allow its students to go for a sabbatical and take a full-time co-op in Fall/Spring (40 hrs/wk). Some might allow that only if the company is located outside of a certain geographical radius, whereas some others might require you to enroll for part-time CPT co-op (less than 20 hrs/wk) if the location of the company falls within a certain radius from the univ. Also, some univs (Northeastern, Cincinnati & Drexel are the top 3, in no specific order) are very well known for their excellent co-op networks, and local employers have been known to hire their students for co-ops pretty readily and by the droves. For others it may not be the case, but still might have a decent co-op scene, and for some others yet, there might be a bleak co-op scene. But, in general, keep in mind one thing: for internships, co-ops and for full-time jobs after your MS, it's always more helpful if you're in a bigger city as compared to a smaller one, and this is truer if you're not in one of the top 30 schools. There's therefore always a trade-off of sorts to make here, whether to go for a better ranked school or the one in the bigger city. I'd say, you will have to achieve a balance of both: go to one of the best ranked schools in your list that is in one of the biggest cities that you have as options. Bigger the city, more the companies in the city, meaning more chances of getting co-ops, and better transportation. The last factor means even if you're forced to commute to work part-time and study full-time simultaneously during the co-op, you'll have an efficient means of transportation. Not having that might be a bit problematic if you're in a smaller city with not-so-good transport facilities. That is especially important, because from what I know, some urban schools that offer co-ops in the Fall/Spring do not allow students to take a sabbatical, and hence they have to work part-time.

For all purposes of this discussion hereon, I am going to refer to both, internships and co-ops, as an internship. Now, as far as the law is concerned, it does not making any distinction between an internship and a co-op like what univs do, or what I have done in the above sections. For the purposes of your F-1 visa, all the USCIS cares about, is which work status you're on, and as an F-1 student, this work status can either be OPT or CPT. 

  1. You can apply for a CPT ONLY if you HAVE NOT GRADAUTED. As the name suggests, it is curricular. Which means it is part of the curriculum. Which means you can apply for it as long as you are a valid student.
  2. How do you apply for a CPT? You normally have a form at the Graduate Programs Office which outlines the possible dates of your internship and all other details. Fill out that form, and get a letter from your advisor stating that this internship is CONNECTED to your field of study and how it is going to help you and your Graduate Program Director will sign off on the application form. Once this is done, take it down to the International Programs Office and they will generate a new I-20 for you with the dates specified on the application. They will then intimate USCIS that you will be interning for this period of time etc., so that there is no confusion with your immigration status.
  3. You can avail CPT for a maximum of twelve months. There is a catch to this. IF you avail the whole duration, i.e., the twelve months (or one year), you WILL NOT be eligible to apply for an OPT (tackled in the later sections).
  4. So, if your internship duration is only three months, or even six months, what happens to the remaining time? If your advisor permits you and your GPD signs off on the application, you are more than welcome to intern again, as long as #3 is not violated. Well, violating it is not a crime, but you will be kissing your OPT chances a good bye. So make sure that how many ever times you intern, the total duration is less than twelve months. Every time you apply for a new internship, a new I-20 with the updated dates is generated by your IPO.
  5. Since you are applying for a CPT BEFORE you graduate, it sometimes could so happen that your CPT dates could fall outside of the DURATION on your ORIGINAL I-20. This is a border case and I have rarely seen it happen. In this case, you will have to apply for an extension to the statute of limitations and continue with your internship. Though this is extremely rare that so many people will sign off on an extension for the sake of an internship. So, for all practical purposes, this point can be ignored.
  6. Many universities allow for an internship to be considered as a certain number of credits for your graduate work. Check with your graduate programs office if this is possible.
  7. Once you finish your internship, you are supposed to come back to school for at least a semester more, finish up your work and graduate.

What is OPT?

Optional Practical Training or abbreviated OPT, like the name tells us, is an optional way to boost your profile AFTER you graduate. A CPT was used for interning BEFORE you graduated and was part of your curriculum. An OPT can be used to intern AFTER you graduate. Explanations follow. There are two major OPT types (but for all purposes, I am going to refer to it as an OPT during the discussion and specifics will be provided only when differentiation needs to be made).

  1. Pre-Completion OPT : For a student who is pursuing his thesis during his masters, IF he/she has completed ALL the degree requirements and the only thing remaining is the THESIS DEFENSE, then the student is allowed to intern under a pre-completion OPT. This is a little bit of a gray area since you have not yet graduated and in this case, a CPT is what it is supposed to be as discussed earlier. Just know that this exists and we will discuss it a little later.
  2. Post-Completion OPT : For students who are doing non-thesis masters and for thesis students who have finished all their requirements and have officially graduated, a post-completion OPT is what matters.

Why is an OPT so important for international students?

For an international student, your visa status (I am not using the word visa, but visa status, because it is the status that matters) governs how long you can stay here. If you recollect from the discussion in the "What is a Visa" section above, you would remember that as an F-1 student, it is your I-20 which decides this "status", and not the visa sticker in your passport. An international student who has completed all the degree requirements and has graduated is no longer on a valid status with USCIS AFTER sixty days of the graduation date and CANNOT stay on in the United States if they do not transition to a valid visa status. Meaning, if you graduate and do not have a job and a work permit, you WILL NOT BE ALLOWED to stay on in the US. This means that you have to find a job BEFORE you graduate. An OPT allows both the company and the student to get a feel of each other, whether the student is employable and whether the company is good and gives both entities a probation period to figure things out, more so for the company in most cases.

This is where a pre-completion OPT helps. If you have nothing but your thesis defense left, and have not used more than 11 months of your CPT duration, then you can apply for an internship on a pre-completion OPT and try to convert that to a full time offer. This gives you much more time that the normal sixty (60) day period you generally get after graduating, to land a job.

For non-thesis students, who do not even have the luxury of delaying their graduation date by not defending their thesis, does an OPT come in handy.

Most importantly, the validity of all H-1Bs (or work permits) START only from October 1st, and no earlier than that date. And until they start, you are in that gray visa status area where you are floating in limbo. The OPT helps to bridge that gray area and keep you in status with USCIS until your company can file for an H-1B petition on your behalf. More details about H-1B petitions are given in the section on H-1Bs below.

The earliest you can apply for OPT is ninety (90) days before graduation and the latest is sixty (60) days after graduation. Meaning, if you are graduating on the 15th of Dec., 2016, you can apply for your OPT on or after the 15th of Sep. 2016, and till the 15th of Feb. 2017, and the start date of your OPT has to lie between those dates as well.

OPTs are generally given out for a year. STEM (Science, Technology, Engineering and Math) graduates can apply for a seventeen (17) month OPT extension in addition to the regular twelve (12) months of the OPT, so their total OPT duration comes to twenty-nine (29) months. Again, there are clauses and they are explained in the points below.

  1. How do you apply for an OPT? First, you need to have graduated (which means you will have an official graduation date) or AT LEAST need to have a thesis defense date scheduled (for thesis students). Pick up an OPT application form from your graduate programs office, fill up your details, including your requested start date, your graduation or defense date and get it signed by your advisor and graduate program director. Take this to the IPO (International Programs Office, or ISO, the International Students' Office, as it is called in some univs), and they will generate a new I-20 with a one year validity for your OPT. You will need a copy of this I-20, along with copies of ALL your previously issued I-20s, copies of your passport and visa, a form I-765 (which is an application for temporary employment authorization), your I94 (which is a departure record that you are given on the flight before you land, and then stapled to your passport by the Customs Officer), unofficial transcript and a cheque for 380 USD (currently). You need to send all these documents to the nearest Visa Processing Center whose address you will get at the IPO. Once they receive it, you will receive a I-765 official receipt stating your OPT is under processing. Once it is approved, you will receive an Employment Authorization Document (which is card very much like your driving license etc.).
  2. Once you are on OPT, does that mean you are officially employed? Yes and no. Yes, in the sense that you are a full time employee of the company (provided you are still not interning). Most companies aim to keep people on internships till they can sponsor their H-1Bs. A H-1B is a visa/work permit that is sponsored by and attached to a certain company. It has to be filed on or before the 1st of April every year and if approved, your H-1B status will be active on the 1st of October of the same year. Companies use a OPT to bridge the gap until the 1st of October of the present year or the 1st of October of the next year if they are not able to file for your H-1B immediately (the latter is only in the case of the STEM OPT extension). There are two things to note here. When you are on OPT, to the company, you are either interning (which means you are getting paid by the hour, have no employee benefits) or you are working full time. Now, companies normally DO NOT convert people to full time unless they are ready to file for your H-1B. There are a couple of reasons and most of them work to the student’s advantage. If you are a full time employee, it means that you are now paid on a salaried basis (even on an internship, you are paid bi-weekly in most places, but you salary is calculated per hour rather than on a per-year CTC), you have health and welfare benefits, medical coverage etc. The major part of the savings for the student comes during taxation. A student on OPT, but working full time does not have to pay SSN taxes, which saves around 500 USD every month. So the reluctance to keep someone on OPT and have them as FT employees on record. Of course, all this does not matter if you are interning. You don’t have to bother about SSN taxes etc. And the downside is that you are responsible for your own medical insurance.
  3. On an OPT, in the eventuality that you lose your job, you will still have sixty or ninety days to find a new job. This is not the case if you are on a H-1B. On a H-1B, legally speaking, if you are fired, you have to leave the country immediately. Companies do not want this to happen to employees, so what they do to work around this is that they keep the employee on the payroll for 4-6 months more (depending on the company) and continue to pay the employee the severance package as a monthly salary paycheck. Once the severance package term is completed, the company will file for a H-1B revocation. This gives the employee time to find a new job and also the person's new company to file for a fresh H-1B.
  4. Applying for an OPT extension is the same as the initial application; albeit, there is a different form and you do not have to send in all your documents again.
  5. Your OPT start date is the date on which USCIS APPROVES your application. This is to make sure that you do not lose time on your OPT in case there is a delay in application processing. The normal OPT wait times are around three months. And if you specify a start date on your OPT and USCIS has not processed your application by that time, your OPT will start on the date they approve your application.
  6. A seventeen month OPT extension can be granted to STEM graduates ONLY and that too ONLY IF your company is an "e-Verify" company and supports the STEM extension. Otherwise, they better file for your H-1B before your OPT runs out, else you will be "out-of-status" and would have to exit the US.
  7. Traveling on your OPT within the country is fine, but you SHOULD NOT travel out of the country when your INITIAL OPT application is pending adjudication at USCIS. This is because during the time your OPT is being processed, your status is hanging in the middle. You came into the country on a non-immigrant visa (F-1 or J-1) and have applied for a temporary work permit (which is what an OPT technically is) and which is precisely what you said you will not do during your VI. So stay inside the US until you get your EAD card.
  8. #7 is not valid (to the best of my knowledge) for an OPT extension. Once your extension request has been FILED with USCIS and you have the receipt for the extension filing, you are in status again. For e.g., if your initial OPT expires on the 22nd of March and you have filed for an OPT extension by let us say mid January, even though you MAY NOT have received the new EAD card by 22nd March, you are still in status with USCIS as long as you receive the receipt for your extension filing. It can be used as proof of being in status.

What is an H-1B visa?

A H-1B is another non-immigrant visa (plus a work permit) that allows employers in the US to employ skilled workers in specialty occupations from outside the US. This category is what international students fall under, once you graduate, use up your OPT and by which time your company HAS to have filed for your H-1B.

So, at the end, this is how everything comes together. You get an admit and request an I-20. The university generates one based on your SEVIS ID etc., and then you go for your VI. Once your visa is issued, all agency databases are updated with your information and visa status.

During your masters, you can intern on your CPT. Just before you graduate, you apply for your OPT and start working (or interning as you want to call it) on your OPT till your company can sponsor your H-1B. Once you get your H-1B, you are set for the next six years and then the process moves forward.

This section is a H1-B specific section with the entire write up coming from @[The_Observer].

Quote:Let us say a student graduates from program from a non-STEM (Science, Technology, Engineering and Math) field, which means he/she is ineligible to get the 17-month STEM extension for OPT, and joins a company during mid year, when will the employer apply for an H-1B?

1. Do they have a specific month for this every year?
2. If they miss the specific month for application (in case one exists), what are the scenarios and consequences?

1. Do they have a specific month for applying for my H-1B every year?

An employer can file for your petition such that it has to be received with all supporting documents at the USCIS application center, along with the basic H-1B processing fee (plus the fee for the premium processing, if you choose to go that route), on or after the 1st of April of the year you want your H-1B to start. Meaning, if you're applying to get your work authorization i.e. H-1B petition approved start Oct. 1st 2015, your employer will have to send in the documents such that they reach the processing center on or after 1st April 2015. Documents sent in before that date, which are received by the processing center or or before 31st March, will not be accepted for processing, and the petitioner (your employer) will have to resend all documents along with the payments, for the processing to start.

But, keep in mind, that your document reaching there on 1st April, or for that matter, any date, does not guarantee that it will be approved, or even processed in the first place. The applications are taken in for processing on a first-come-first-served basis, in the order they were received by the processing center, until the quota(s) are exhausted. Meaning, if you have a graduate degree, and your employer has petitioned for your H-1B to be applied under the 20k quota for people with US advanced degrees, and if that quota is exhausted by the time your app gets in for processing, your app will automatically be considered for the regular 65k quota. If your employer has filed for your H-1B in the 65k quota to begin with or if you're rolling over to the regular 65k quota from the 20k Masters+PhD quota, and if that quota has been filled up too, then your H-1B petition will automatically be rejected. Yes, just because it didn't get there in time, or if in the case the USCIS uses a lottery-based system (as is the case this year, in 2013), and your petition isn't picked up by the lottery. This year, the USCIS announced on 5th April that it had exhausted both the 20k and the 65k quotas, i.e. in 5 short days. But, the USCIS does not and cannot update for each petition the processing center gets, and it cannot update once a day either, so they just announce whenever the number of applications received crosses the quota threshold. Meaning, if by the end of the work timings on the 4th of April, either of the quotas was yet to fill up, they would still have accepted applications that came in on the 5th of April, but if they counted and found out at the end of business on the 5th that they had crossed the 85k (65k regular + 20k MS/PhD) number, they closed this year's quotas. But, in all likelihood, on the 5th of April itself, while the number of applications was more than 85k (more than 65k regular quota eligible petitions and more than 20k MS/PhD quota eligible petitions), the actual received number would've been much higher. Now, assume, that at the end of business on the 5th of April, they USCIS did a tally and found out that they got a total of 30k MS/PhD petitions, and 80k regular petitions, then what are they to do? Congress mandates the total number of H-1B visas issued in every year to be 65k+20k, but here there are 30k+80k, i.e. 110k. So how to choose which 20k petitions from among the 30k MS/PhD petitions received and which 65k petitions from the 80k regular petitions received, would be approved?

That, is where the concept of a "lottery" comes into play. Now, a lottery system (a randomizer, of sorts), would be used to pick out 20k petitions for the MS/PhD quota from the MS/PhD pool, and a separate 65k other petitions from the regular pool (which might include the rest of the MS/PhD petitions which were not considered in the 20k pool, but which automatically got rolled-over to the regular 65k pool because the MS/PhD quota got filled up - which almost always happens before the regular quota is filled up). If your petition is picked up by the lottery, then the processing begins. That still doesn't mean your H-1B petition is actually approved. Here, a USCIS officer adjudicates over your petition and decides whether to approve it or reject it based on the documents you have provided. If any of your documentation is incomplete, the USCIS will send you an "RFE" (Request for evidence), which means you (or rather, your employer) is being given a chance to issue further clarifications or justifications or supporting evidence, so as to be able to make a better judgement on your case, whether it should be approved or not. An RFE means the USCIS is waiting for your employer to send in supporting evidence, and your employer has until a certain timeframe to do so (I don't know what that is, precisely), but until the end of that evidence window, you won't lose your place in the queue. But, if your employer sends in incorrect evidence, or the sent documentation is unsatisfactory (which happens sometimes too, if the attorneys aren't experts in immigration cases, or your employer botches it up for whatever reason), or if your employer/attorney sends the documents after the amount of time given to respond, then your H-1B petition is declined. And since, at that point, the quota has been exhausted, you have no other resort but to go through the whole process from scratch and apply for the next year, starting April 1st.

One important point about the lottery: The lottery algorithm doesn't see the 85k quota as a whole slab, but it sees the overall 85k figure as 2 chunks, one for the 65k regular quota and another one for the separate MS/PhD 20k quota. Meaning, a separate lottery is run on the 65k quota and this is different from the one run on the 20k MS/PhD quota. That means, if your application is accepted for processing in the 20k quota, your petition will only be competing against the other MS/PhD quota-eligible petitions, for one place among the 20k. Ditto for the 65k, but here the competition is actually more, because you'd not only be up against the regular applicants, but also the roll-overs whose petitions couldn't be accepted since the MS/PhD 20k quota got filled up, and were accepted for the 65k quota lottery. Not that it matters to you at this stage anyhow, but it can make for an interesting statistical observation.

2. If they miss this specific month for application (in case one exists), what are the scenarios and consequences?

I am assuming "this month" means April. As I said above, it doesn't matter to the USCIS when you send the petition and all documents+fees, but when they receive it. If your petition is received after both quotas are filled up, your petition is automatically declined, and you have to apply in the next year. If that happens, in no way does a rejected H-1B petition affect or impact of your current status in the US. Meaning, if you're in the US on OPT, your OPT continues unabated. The problem is when you are on your OPT, but it is set to expire before the next April. Example: you graduate in Dec. 2014, and your OPT begins in say Feb. 2015. Now, assuming you get a job in the same month, say Feb. 2015, then you have 12 months of OPT (not counting the STEM extension, which MBA students and non-STEM majors do not get), i.e. your OPT ends in Feb. 2016. Now, you better have an employer who is ready to (1) sponsor your STEM extension, if that's an option, starting Feb 2016, else you're out of status in Feb. 2016, or (2) if you're ineligible to get a STEM extension because of your program major, you must have an employer ready to sponsor you immediately after you join, in Feb. 2015. If you only have a 12-month OPT, then you won't be able to wait until the 2016 H-1B processing intake that begins on 1st April 2016, because your OPT would've ended in Feb. 2016 and you'd be out of legal status in the interim.

So what happens then? There can be 2 possible scenarios:

1) You have a STEM extension:

In this case, you have some breathing space. You don't need to immediately find an employer willing to sponsor your H-1B as soon as your OPT starts, because you have a further 17 months under the extension, starting from Feb. 2016 (i.e. till July 2017). So, you have a total of 3 attempts to find an employer who is ready to sponsor you, and get your petition in: 1st April 2015, 1st April 2016 and 1st April 2017. If you find such an employer and if your petition is approved, well and good. If your petition goes in for the 1st Oct 2015 H-1B start date (i.e. on or after April 1st 2015, until both quotas run out), or for the 1st Oct. 2016 H-1B starting period (i.e. on or after 1st April 2016, until both the 65k and 20k quotas run out), and even if your petition is rejected, no issues, because you still have 2017 to try for. But, if your petition is rejected for the 2017 start date (i.e. petition that reaches USCIS on or after 1st April 2017), then you're out of luck, because your OPT extension expires in July 2017 and you cannot stay in the US any longer. Then if you want an H-1B, you'll have to return to your home country and try for the 1st Oct. 2018 start period from there, making sure your app is received at the USCIS application processing center on or after 1st April 2018.

2) If you do not have a STEM extension:

You basically have just ONE shot to get your H-1B approved. Meaning, if you graduate in Dec. 2014 and if your OPT starts anytime before 1st April 2015, then you have to make sure to have an employer ready to sponsor you as soon as the quotas open on 1st April 2015, else, if your petition is rejected for whatever reason, you will have to exit the US after your OPT ends (which will be before 1st April 2016). If you graduate at the end of the Spring semester or Spring quarter in some schools, meaning in say May or June 2015, then your one year of OPT will go through until 12 months from the start date of your OPT, meaning sometime between May and Sep. 2016. But, still you have only ONE shot to get an H-1B petition in, i.e. in 2016. Even though you are in the US in April 2015, you cannot find an employer to sponsor you for the 2015 period starting on 1st Oct. 2015, or even if you have any such employer who is ready, the employer cannot apply for an H-1B petition on your behalf, because you won't be graduating until later, say May or June or July 2015. Again, even for Spring graduates from non-STEM programs, same deal applies as for the non-STEM Fall graduates: either get an employer who's ready to file for your H-1B in the one shot you have at it, or else go back to your home country.

If my OPT starts on the 20th of April 2015, and the H1-B application can be filed only during the next year, that is on or after the 1st of April 2016, the non-STEM OPT ends on 20th April 2016. If so,
1. Does it end up with an RFE and what other complications occur?

The main disadvantage of getting a Request For Evidence (RFE), is that until the RFE is cleared and your H-1B petition is approved by the USCIS, you cannot work in the United States, period. That means, if you're on OPT and you get an RFE at any time before 1st Oct, no issues, because you won't be transitioning to H-1B status before 1st Oct. anyway, and you have that much time to hope to get the RFE cleared. If you do not get your H-1B petition approved by 1st Oct., you're basically in a limbo - allowed to be in the US because the adjudication of your H-1B petition is underway, but it hasn't been as yet approved. If you get an H-1B denial after the adjudication of your case, or a denial after an RFE, both of which happens after 1st Oct., and if your OPT has expired, then you have to leave the US as you are not in status any longer. If you get an RFE after 1st Oct., you are allowed to stay in the US, but not start working, until (1) your employer sends in the documents needed to support your H-1B petition to clear the RFE, (2) you get the RFE cleared and a decision is issued in your case. If you get an approval, congratulations, you can start working on the very next day after your employer gets the approval notice from USCIS, if that happens after Oct. 1st. If you are denied, you have to pack your bags and go back to your home country.

2.Provided no other complications arise, when can the visa be obtained? Is working post April 20th permitted till the H1-B is obtained?

1) As I said above, your OPT is not going to start that late.

2) The H-1B petition filing period starts on the 1st of April each year, but all petition, irrespective of whether the beneficiary of the petition (i.e. you) is inside the US or not, has a graduate degree or not, all approved H-1B petitions start on Oct. 1st, and Oct. 1st only. That means, irrespective of whether the quotas get filled up on the 1st of April, the 15th of April or in May or whenever, you will transition to H-1B status only beginning the 1st of Oct. In the interim period, your earlier visa status will continue unabated. For example, if you were on OPT when your employer had filed an H-1B petition for you, then you will continue to be on OPT until 30th Sep., and on Oct. 1st, you will have to fill out a new I-9 Employment Verification form and re-submit your visa, I-20, I-94 and H-1B approval notice document photocopies to your employer, that signifies your transition of status into H-1B. If you do not exit the US in the interim, that is pretty much all you need to do.

What is "cap-gap"?

1) Assume that you graduate on 15th Dec. 2014.

2) That means, you have until 15th Mar. 2015, to begin your OPT, meaning the start date of your post-completion OPT should fall between 15th Dec. 2014 and 15th Mar. 2015.

3) Assume you start your post-comp OPT on the 1st of March, 2015. That means, your regular OPT will last until 29th Feb. 2016 (or until 28th Feb, if the next year isn't a leap year). If your program is eligible for a STEM extension of 17 more months, the extension would start on the 1st of Mar, 2016 (there can be no gaps between the regular 12-month OPT and the STEM extension, else you are considered to be out-of-status and subject to immediate deportation from the US), and that extension would go on until the 1st of August 2017.

4) Now, suppose your employer files for an H-1B petition on your behalf in 2017 (i.e. on or after the 1st of April 2017), and if your petition is approved, then it will begin on the 1st of Oct. 2017.

5) But, your OPT ends on the 1st of August 2017, and your H-1B status begins on the 1st of Oct. 2017. So what happens in the interim? Technically, there should be no gaps between any of your immigration statuses in the US, meaning there should be no gap, no even of one day, between your OPT (or OPT extension, as the case might be), and the start of your H-1B, else again you're subject to deportation from the US. So, to avoid this scenario, where you'd have gone out-of-status for the interim period (in this case, 1st Aug. 2017 to 1st Oct. 2017), the USCIS had introduced the "cap-gap" clause back in 2008.

6) For the exact wording of the clause and it's ramifications, please refer to the USCIS website, but I will try to summarize it here for you. "Cap-gap" refers to the immigration status that a person is in, when his/her OPT (or OPT extension period, as the case might be) has expired, but when the person has an approved H-1B petition in hand, set to begin on the 1st of Oct. of the same year. That "cap-gap" allows you to work with your present employer, as a logical extension of your OPT (or the STEM extension), without some of the benefits of your OPT (or OPT STEM extension). What benefits are those? The biggest advantage of your OPT/OPT extension, is that with an approved OPT or an in-process OPT extension, you can exit the US, say to go to your home country. But, if you're in the "cap-gap" period, if you exit the US, to go to any other country, be it your home country, or even Canada or Mexico, you are considered to be ineligible to re-enter the US. Meaning, the "cap-gap" status only allows you to stay in the US legally and is valid only until you're in the US. The minute you step outside the US, you are considered not to be in valid OPT status any more (since your OPT period or your OPT extension has expired), and you're not even on H-1B status (since your H-1B validity period starts on the 1st of Oct.). In such cases, if you do exit the US, you will have to wait until your H-1B period starts, i.e. the 1st of Oct., to reapply for an H-1B visa, go through the entire visa application formalities (i.e. payment of visa processing fees, filling up of the DS-160 form, etc.) and will have to appear in person for a visa interview. Only if your visa interview results in your visa being approved, only then would you be able to re-enter the US. Even with an approved H-1B petition, many visas are rejected in VIs, so it isn't a given or necessary that an approval in the US translates to an automatic visa issuance at a consulate outside the US.

So, what is the difference between "visa approval" vs. "visa issuance", or "H-1B petition being granted" vs. "visa being granted"?

1) A visa is merely a travel document that allows you to enter the US. Nothing more, and nothing less. It does not decide the validity or legality of your stay in the US, be it the F-1 visa (for students) or the H-1B visa (for temporary employees).

2) That "period of stay" is dictated by another document. In the case of an F-1, it is the I-20 which decides how long you can stay inside the US as a student (as indicated by the start and end dates on the I-20). In the case of an H-1B, that is given by your H-1B approval notice. The start date of every H-1B approved is the 1st of Oct of that same year, as I said above, but the end date can be any date until 3 years from the start date. Meaning, if your start date is the 1st of Oct. 2016, as per the current immigration regulations, your H-1B visa can be granted to run until some date before 30th of Sep, 2019, as specified by your employer in the H-1B petition which they have filed on your behalf.

3) "So, if I have an approved petition, that means I am all set, right?"

No, not completely true. That holds only if you stay inside the US. The H-1B approval notice, or the approved H-1B petition, only states that you can work under H-1B status starting 1st of Oct. 2016 (assuming your employer filed your petition on or after the 1st of April 2016). That in no way dictates, relates or states, if you can re-enter the US once you exit the US.

4) What do I mean by that, is the approval notice is NOT a visa and cannot be used to re-enter the US. So, even if you have an approved H-1B petition, once your OPT period ends, if you exit the US, you need another visa to re-enter the US. The petition kicks in once you have entered the US, or are already inside the US, in which case you can work for any employer full-time till the end date specified in the approval notice.

5) "But I already have a visa, so why do I need to get another one!"

Because if you came into the US as a student, the visa you got stamped in your passport, was an F-1, and not an H-1B. Different visa type, meaning if you exit the US when you're on your new immigration status (meaning you have transitioned from F-1 to H-1B), you have to get a visa of your new type stamped. Your F-1 visa expires automatically on the end date of your 17-month OPT (or your 12-month regular OPT, in the case of non-STEM majors), irrespective of the end date printed on the visa sticker itself. As "cap-gap" is not considered to be either OPT or F-1, and neither is it considered H-1B, you cannot re-enter the US with either an F-1 or an H-1B visa, if you exit the US on "cap-gap", and would have to wait until your H-1B validity period starts, and then go to take a VI to get your H-1B stamped.

Important point: The "cap-gap" period only kicks in, if your H-1B processing is underway (i.e. your employer has already sent in your documents and fees for H-1B visa processing) or if your H-1B visa is approved (you have the approval notice in your hand). If your H-1B petition was filed, but is denied, and your OPT ends, you can say goodbye to the USA and will need to go back to your home country, and in all such cases the "cap-gap" period doesn't even kick in. If you get your denial in the "cap-gap" period, the same thing applies; you have no grace period to pack your bags, you are supposed to exit the US immediately, else you're subject to deportation.

Also, there is no grace period or "cap-gap" period between the end of your regular OPT and your OPT STEM extension. As I have said above in this post, there can be no gaps anywhere in your immigration status, so not even a day's gap between the end of your regular OPT and your OPT extension, else you're out of status and again, subject to deportation from the US. So the "cap-gap" period is a facility that exists for people who have (1) a valid job offer from a US employer, and (2) a valid H-1B petition underway that was filed by that employer.

6) "What happens when our H-1B petition approved for a time slab of 3 or less years has expired?"

Then, basically, unless a new H-1B non-immigrant petition or an employment-based immigrant petition (i.e. a Green Card petition filed by your employer, to apply for a Permanent Resident card on your behalf) is in-process, you will have to pack your bags and go home.

So, you (or rather, your employer) cannot and should not wait for the 3 year period to get over. You should plan early, and get your H-1B petition filed into the USCIS well before the earlier H-1B expires. Keep in mind that the end date of your H-1B might not necessarily be a whole 3 years from the initial start date, e.g. my own H-1B expires not on 30th Sep. as one might expect (since I shifted over to H-1B status on 1st Oct.), but on 25th Sep., which is what my employer mentioned in the petition that was filed. Anyway, the process for subsequent H-1B filings is the same as the earlier ones, except that for the subsequent filings in any continuous 6-year period (i.e. you've held at least one H-1B visa in the past 6 years without any gaps), you will be cap-exempt. What that basically means is that for subsequent H-1B filings within 6 years from the date you first started on H-1B visa status, if there have been no gaps in your employment or stay in the US on H-1B status, then you won't be subject to the 65k and 20k quotas, and that your application will be reviewed even if the 2 quotas fill up. That said, although it means that theoretically your petition can be sent in by your employer in September too, I'd recommend sending it out ASAP, because if you cross 1st Oct. and you haven't gotten an approval or a denial from USCIS, then you can stay in the US but cannot work until your petition is approved.

For more details on cap-exemption, scroll to the end of this post.

What is the big deal about this "out-of-status" thing anyway and why is it being repeated so often in this post?

Because, even if you might not be caught at the time you commit the lapse (i.e. go "out-of-status"), it will come back to hurt you later on. Especially if & when your employer petitions for any subsequent US visa (be it an H-1B for you or an H-4 for your spouse), and especially if your company sponsors you for a green card later on. If any such points of time in which you were out-of-status are then unearthed, or if it comes to light that you had at some point in time overstayed your immigration status in the US for whatever reason (knowingly or unknowingly), you are considered to have broken US immigration laws. An immediate consequence of that is you getting deported back to your home country, but most importantly, (1) you can kiss that US green card good-bye, if you have ever been out-of-status in the US, and (2) if you choose to apply to any other country for a visa, be it the UK, Canada, etc., all of them have a question on their visa application forms, "Have you ever been deported from any country before?", and (a) you cannot lie on it, and (b) if you don't, which you shouldn't, you will have a really hard time getting that visa too.

What exactly is meant by the "H-1B Cap", and what is the meaning of "Cap-exemption"?

The H-1B quota of 65,000 (65 thousand) applicants per year for people with bachelors' degrees from all over the world, and the separate quota of 20,000 (20 thousand) applicants per year for people with masters' or doctoral degrees from universities in the MS, are together called as "Cap". Thus, the cap for people with MS or PhD degrees from the US is 20 thousand, which is the maximum number of H-1B petitions that can be accepted for processing. Note, that the cap has no relation to the number of petitions that are approved by the USCIS, but the number of approved petitions will always be equal to, or less than the number of applications accepted within a cap for a particular year. When we say that the H-1B filing quota begins every year on 1st April, petitions are continued to be accepted till the time the cap is filled up. A similar thing happens for the 65k cap as well. Keep in mind that when you talk about the "Cap", there are 2 restrictions which will necessarily come into play: (1) the date range i.e. from April 1st to the date the Cap is filled up completely, and (2) the number of petitions received for the USCIS, out of which only those number of petitions would be accepted, which would fill up the Cap, in a first-come-first-served basis.

So, what is "Cap-exempt"? Simply put, "Cap-exempt" H-1B petitions are those, which are not bounded by the number of petitions accepted for processing by the USCIS. That means, if your petition (through your employer, of course) is eligible for cap-exemption, and if your employer and H-1B petition satisfies all criteria to be classified as a "cap-exempt petition", then your petition would be accepted for processing by the USCIS even if the Cap is filled out for that year. That also means, that if your petition is cap-exempt, it will not need to go in to the USCIS on 1st April, as other petitions would need to (because it is first-come-first-served, and hence the earlier your petition goes in, the better your chances are of it being picked for processing). A cap-exempt petition will be picked up for processing even if it reaches the USCIS after both the 20k and the 65k caps are filled out.

So how do you get an H-1B cap-exempt petition filed on your behalf?

Remember that a cap-exempt petition is after all an H-1B petition, so you cannot decide how it is filed, unless you're self-employed. For a petition to be cap-exempt, it has to fulfill certain conditions, and by "it" here, I mean that your employer would need to be a very specific type of organization.

The following part is courtesy of arpithjain, which elucidates on what constitutes a "cap-exempt" H-1B petition:

There are a lot of non profit organizations, universities, hospitals affiliated with universities etc., that are not subject to the usual 65k and 20k limits imposed on H-1B visas. If you work for one of these organizations, your employer can apply for an H-1B on your behalf at any time of the year, without worrying about the cap and also the approval rate has been seen to be higher for these cap-exempt petitions than the regular ones. The H-1B processing fee that these organizations pay is also far less than the regular H-1B fee. Also, if you have dependents, then getting H-4 visas for them is a lot easier if your H-1B petition is "cap-exempt", as compared to other regular H-1B petitions.

If you just search on Google for "cap-exempt employers", you'll get a whole list of such companies (many of them, especially healthcare, are in dire need of IT professionals). If you have any questions about H-1B cap-exemption, feel free to PM arpithjain directly or post those questions here for the benefit of others.

And here are some of the questions that I have been asked about H-1Bs, and their answers:

Scenario 1:

Quote:I already have a stamped H-1B visa on my passport that had been sponsored by my current employer in my home country. The stamped H-1B visa is valid from Oct 2013 to Sep 2016. However, I am still in my home country and will not be travelling to US for work in the next 1 year.

Q1.1: "I am planning to do MS in Fall 2014. After graduating from the MS in Jan 2016, can the previous H-1B (which is valid till Sep 2016) be re-used? Or should the employer file for a new H-1B on my behalf?"

You cannot hold two visas of the same country of different types at any given time, period. Meaning, if you apply for an F-1 and it is approved, then the day your F-1 is stamped, your H-1B would be cancelled. And there is nothing you can do about it. Also, since it would be cancelled, you'll have to repeat the whole process all over again when you graduate, and hence you'll again have to find a new employer (or ask your current employer to sponsor another H-1B for you, if they're willing to give you a job after your MS).

Q1.2: "If the currently valid and stamped H-1B is cancelled and the whole process is repeated all over again, will the H-1B cap exemption be applicable after I graduate, as I already had an approved H-1B, or would I be subject to the H-1B cap when I re-apply?"

From what I know, there are two things for you to go on valid H-1B status: (a) your H-1B work petition must be approved before you can start working, if you're already in the US, e.g. say on another visa type such as the F-1 (including OPT and OPT Extension), and if outside the US, then you have to get the H-1B visa stamped, and (b) once you report to work for your employer on or after the 1st of October, you should fill out an I-9 form within 72 hours and that gets reported to the USCIS, of your proof of having commenced on H-1B status. And the 2nd clause applies also for F-1 --> H-1B change of status (CoS) cases, because even if you had been working for the same employer earlier, when your H-1B approval kicks in after the 1st of Oct, you'd be technically treated the same way as though you were to freshly join that employer from your home country.

There was a reason I explained all that to you here, because I wanted to explain what it means in the eyes of the USCIS to successfully start working on H-1B status, be it in the case of a newly approved petition, an H-1B transfer or an F-1 --> H-1B CoS. Now, in your case, the H-1B petition was approved, you got the visa, so you satisfied the (a) clause above, but since you didn't enter the US using that stamped visa, join the employer or filled out the I-9 form, you did NOT ever start working on an H-1B. And the exemption from the lottery is valid only if you have been on valid H-1B status for at least 1 day in the past 6 years, which isn't the case here. Therefore, unfortunately, you will be subject to the H-1B cap and the lottery again, if applicable, even if your employer applies for another H-1B for you within the next 6 years.

Q1.3: "If my current employer is willing to give me a job after my MS, would it be a renewal of my currently approved H-1B visa or would it be a totally new visa all over again?"

A renewal of an H-1B is said to occur mostly when your earlier H-1B is about to expire, and your employer (the same one which applied for your earlier, active H-1B) applies for a renewed H-1B or H-1B extension before the end date on the active H-1B. In your case, none of this matters, because you've not been on an H-1B status ever, so any future H-1B applications on your behalf would be considered as new applications. Also, even if you'd have come here on your stamped H-1B visa, and would've started working and have filled out an I-9, if you were to transition to another visa type, including the F-1, then again, when an employer (either the same one or a new one) would file for your H-1B after the F-1, it would be treated as a CoS case, but NOT a renewal, due to the gap in the H-1B status because of the F-1. So, it would've been a new visa, but the only thing is that you'd have been cap-exempt and not subject to any lottery if the newer petition is done within 6 years from the initial start date of your first H-1B, i.e. 6 years from 1st Oct., 2013.


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