Exploring H-1B Visas

In our latest online chat, immigration law attorney David Ware answered questions about the complicated and controversial H-1B visa process

With the Apr. 1 deadline for coveted H-1B visas looming, many international graduates of U.S. business schools who are looking to work in the U.S. have questions and concerns, especially since there is a shortage of these visas (BusinessWeek.com, 5/14/07). Business school applicants and students also have their share of questions about living and working legally in the U.S.

Recently, David Ware (DavidWare), a lawyer specializing in immigration and nationality law, fielded questions from an audience of business school applicants, students, graduates, and BusinessWeek.com reporter Francesca Di Meglio (FrancescaBW) in a live chat. Here is the edited transcript of the event:

FrancescaBW: Our first question today comes from someone who was unable to join us for the chat. Here it is: "I am an H-1B holder (3.5 years used up—no green card). I am planning to go to the UK for my MBA in the fall of 2008. After my MBA, will I be eligible for a totally new six years of H-1B in case I try to come back to the U.S. (because I left the U.S. for more than one year and my employment was terminated by my company) or will I have only two years of eligibility left (in which I will not be subject to the quota)?"

DavidWare: You can choose to either take a new six years and be subject to the quota or the remainder of your old six years, and not be subject, assuming you are out of the U.S. at least one year.

FrancescaBW: Here's another question from someone who could not join us: "I have one year (out of six) left on my H-1B and have my EAD (Employment Authorization Document)/AP (Advance Parole) through my employer. Since the green card priority dates seem to be a distant dream, and I am planning to go to grad school next year, I am wondering if I should work on EAD and abandon the H-1. The reason is I am skeptical is that if I finish my six years of H-1, I will not have any H-1 time after grad school, and it will be worthless to spend all the time and effort in grad school if I can't work after that. Please let me know if this is the track I should follow. Also, what is the procedure for me to start working on EAD?"

DavidWare: You certainly could do that, but one year of H-1B may not be much help to you after grad school, since you have to begin PR (petition) before the end of the fifth year, unless the employer's petition for you is already approved or will be approved and the company does not revoke that petition. In that case, you can use the old LC filing date, which will be more than 365 days old by the time you finish grad school, to continue extending your H-1B beyond the sixth year.

One wrinkle—if your employer moves to revoke the petition because you go to school and stop working for him or for any other reason, then your EAD will be canceled automatically. It would be safer to change status from H back to F, but that may not be allowed because of your AoS (Adjustment of Status) application, and also if it were [dependent upon] your work opportunities as an F, [you] would be more limited than with an EAD. There is no procedure to begin working on the EAD; you simply do not renew the H.

FrancescaBW: Here's another one from someone who couldn't be here: "Is there any way an accounting major with a 'green card' from Canada (or legal resident status) could work in the U.S.?"

DavidWare: Assuming the person has a four-year degree, he can obtain an H-1B visa. Depending on nationality or other circumstances, there may be other visa alternatives. I'd need to know more facts. Also, three years of professional-level experience can substitute for missing years of academic training, if the degree is less than four years (as is the case sometimes in India and Pakistan). Just having a green card in Canada does not permit one to enjoy different or special visa statuses.

mbKelleySoB: From your experience, have you seen more employers use L1 visas instead of H-1Bs due to the shortage?

DavidWare: Yes, I have and these are quite effective if the employee has worked at least one year abroad for the company during the three years before coming to the U.S., and if he or she meets other qualifications for the L.

prashanth82: I have an H-1 visa, which was issued in June, 2006, and I came to the U.S. in October, 2006. I am planning to apply for the fall 2009 MBA program. I would have finished staying in the U.S. for two years on my H-1 by the time I got into college. So when I complete my MBA in 2011, can I still use my old H-1 visa to work in the U.S.?

DavidWare: No. You will have to change to F status if you wish to go to school full-time; you will then have to change your status back to H, but you will already have been counted against the quota, assuming you are not currently working for a quota-exempt employer, such as a university.

mbKelleySoB: One of our graduating MBAs reported that his employer wants to apply for a J1 visa instead of an H-1B for his full-time job at that firm. Have you heard of this scenario? I don't see how his full-time job could be considered "training" (which is, I believe, a requirement for a J1), and the student is concerned about the requirement to return home included in the conditions of the J1 visa. Can you please give me your insights on this case?

DavidWare: For entry level jobs, in some situations, a J trainee visa may be appropriate. Not everyone is subject to the two-year requirement to go home; if so, for most nationalities, it is an easy (albeit sometimes lengthy) process to get out of the requirement. You see the J utilized quite frequently in the hospitality industry, where OJT (On the Job Training) through departments really is the norm.

rajrao365: I am already working in the U.S. I have an MS degree from a university in Missouri. I am looking forward to pursuing my MBA full-time. Since I am already on an H-1B, do you think it is a huge risk going for a full-time MBA? Please consider the fact that I will have to be on H-1B again after my MBA.

DavidWare: My answer depends on how long you have been on H and whether you've been counted against the quota. If you've been on H four years or less and counted against the quota, I'd say little or no risk.

noctry: Currently I have an H-1B visa to work for a nonprofit organization in the U.S. To get into B-school this fall, I need to get an F-1 visa. Could you please tell me how to adjust my status from H-1 to F-1?

DavidWare: You first obtain admission to the school, which will issue a Form I-20 for you. With that form and certain other documents, you will file Form I-539 for a change of status. In most cases, the school will assist you with this.

Kal_B: I was an F-1 student who is currently in an H-1B visa. If I am doing my MBA, it would be my second master's. I have already used my CPT (Curricular Practical Training) for an internship in my first master's program. My question: Is it possible for me to get another CPT for doing the MBA internship? I was told that I can get another CPT only if I am doing a PhD.

DavidWare: I will assume here that you are correctly referring to curricular practical training. There should be no limit on this in your new program, but details depend on the institution and the program, which have great power in deciding the parameters of CPT.

If you are confused and asking about optional practical training instead, then the advice you received is correct —you may obtain another year only after a professional (JD, MD, etc.) or PhD [program].

dklein: I'm an F-1 student and recently opened my company here in the U.S. What do I need in order for the company to issue me a working visa?

DavidWare: Great question! To be considered an "employer," the company must have at least one full-time salaried employee other than you. If not, then it cannot sponsor you for an H. Moreover, the company will never be able to sponsor you for PR unless your total investment in the company rises to $500,000 or $1 million (depending on where you're located) and has 10 full-time employees.

Probably, unless you qualify for an E-2 or E-1 investor or trader visa because your country has such a treaty with the U.S., this will be a dead-end option for you. You may be better off working for someone else, getting your PR, and then opening your own company. I'd need more facts to help you decide.

deekshamittal: If I get an H-1 visa petition but did not get it stamped yet and did not fly to the U.S., [and] I get a better employer, can I get the same petition relocated to another employer?

DavidWare: No, the new employer will have to file a new petition. But assuming your current employer is subject to the quota, you won't be counted against the quota again.

mbKelleySoB: As you know, for a green card application, the employer needs to "prove" that the position could not be filled by a U.S. citizen or permanent resident for the green card to be processed. There is a movement to make the same requirement mandatory for H-1B applications. From the buzz in the legal world, how likely do you think it is for this scenario to happen?

DavidWare: Very unlikely.

deekshamittal: I have a valid L-1 visa stamped on my passport, but if I need to go to the U.S. on a personal trip, will I need to get a different visa stamped? In that case, what happens to my L-1?

DavidWare: You will need a B-1/B-2. Your L will remain valid for future trips on company business.

wilsome: What is meant when you say "counted against the quota?"

DavidWare: It means a quota number has been allocated for you. There is a quota of approximately 58,000 "regular" H-1Bs allocated each year, and 20,000 "U.S. Master's" quota visas, for those who have achieved a U.S. master's degree or higher. These visas are given out on Apr. 1 of each year, for employment to begin Oct.1, which is the beginning of the federal fiscal year.

mbabuster: Does my existing H-1B get counted after my MBA? I have been working in the U.S. for the past 1.5 years. Will I come under a new H-1 quota once I finish my MBA?

DavidWare: You will have the remainder of your six years when you finish your MBA. Assuming you've already been counted against the quota, then you won't be counted again.

wilsome: What are the top industries for granting visas? Do you have a better chance to get a visa based on the industry you want to work for?

DavidWare: The top would be IT. No, industry doesn't matter as long as you meet the basic requirements for the H—you have at least a four-year degree, position requires this or similar degree, and employer is willing to pay competitive wage.

prashanth82: I did not quite understand why working for four years or less on an H-1 is "little or no risk" if you are applying for a full-time MBA. How does the duration of work on your previous H-1 impact your next H-1 application?

DavidWare: Because then you have sufficient time left to begin a green card application before the end of your fifth year, which is essential to obtain extensions of the H beyond the sixth year.

rajrao365: As far as OPT, I thought we get one year's OPT for all masters combined. So if I have used up six months of my OPT for my MS, I should still have six months post-MBA, right?

DavidWare: Not unless you requested only six months and your EAD is good for only six months. If your EAD is good for a year, you get no OPT after a second master's.

rajrao365: Also, how is the OPT calculated, say, if I started working on Apr. 1, which is when my OPT started? If my H-1B gets approved the same year, how much of my OPT would I have used by then?

DavidWare: You only get one year of OPT after each successively higher degree. If you only use a portion of a one-year OPT card, then unfortunately, it's all gone.

Darden2010: I have heard that all management consultants that apply for H-1B visas get them, so management consultants don't have to go through the lottery?

DavidWare: 100% false.

Darden2010: What is happening with the new bill that will extend the OPT to 2.5 years?

DavidWare: It's pending in Congress.

noctry: One question on OPT—optional practical training: I've earned a master's degree from a U.S. university. After graduation, I applied only for six months of OPT and used that before I got an H-1 visa. Now, if I pursue a full-time MBA, can I still apply for OPT for another six months or can I split OPT? I know I only have one-year OPT no matter how many master's degrees I get.

DavidWare: Yes, if your EAD was only for six months.

wilsome: What is the best way to learn about a company's visa policies?

DavidWare: Go to their Web site or call human resources.

Darden2010: Can you apply for a green card before five years on H-1B?

DavidWare: Yes.

Kal_B: I was referring to the Curricular Practical Training. But thanks for resolving the Optional Practical Training detail, too. How early (before the school start date), can I apply for a change of status visa from H-1B to F-1 visa? Can I do this in the U.S. or should I go back to my home country to do this? Is the latter considered riskier than the former?

DavidWare: You can do it up to four months ahead of your start date. You don't have to go home to do this. Yes, going home to get a visa is always much riskier than applying for COS in the U.S.

FrancescaBW: Here is another question from someone who could not join us today: Can my parents file for a permanent resident permit for me using any of my brother's income as support?

DavidWare: Yes. But generally for someone applying through parents, you are looking at a wait for PR from six to nine years, with no work permit or permission to remain in the U.S. while waiting.

Darden2010: Can you start companies while you are on H-1B? What if you continue to work for your sponsor company but start your own company on the side? Is this allowed?

DavidWare: No. You can be a passive investor but cannot work in the company until it, too, files for an H on your behalf.

deekshamittal: I have a valid L-1 stamped on my passport, If I need to go to the U.S. on H-4, will my L-1 still remain valid for future trips with the same employer?

DavidWare: Yes.

prashanth82: If I have an L-1 petition and stamped visa which is valid for another year and if I need to travel to the U.S. on an H-4, can I use my L-1 petition in two to three months' time, while it is still valid to work in the U.S., provided I get it stamped again?

DavidWare: You don't need to get it stamped again as long as it is still valid after you come as an H-4. But yes, you can come in future as an L after being here as an H-4.

Kal_B: The change of status seems to be taking a few months now. Can you confirm whether this is correct?

DavidWare: Correct—three to four months.

noctry: After filing Form I-539 to request a change of status, can I still work for my current employer until school starts? How long does it take to complete this change of status?

DavidWare: You can work for the current employer until the effective date of the COS. It takes about three to four months.

deekshamittal: Will I need to come back to my home country to get my L-1 restamped on my passport if I go to the U.S. on H-4?

DavidWare: Not if your old L is still valid.

FrancescaBW: We've just about run out of time. Before we go, David, do you have any parting advice for our audience?

DavidWare: If you're applying for an H this year, better hurry! If anyone wishes to contact me directly, he or she may e-mail me at dware@david-ware.com.

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