Alan Lee's Talk At Rutgers University On January 27, 2008 - H-1B
Issues (Part 2 of 6). Published in Sing Tao Weekly on 2/24/08
By Alan Lee, Esq.†‡
(This is the second of six parts of the talk given by Alan Lee,
Esq, before the Rutgers University Chinese Students and Scholars
Association on January 27, 2008. The first article stopped with
the discussion of liability to employers when applicants try to
do their own H-1Bs. This article picks up with "Strategies
of filing H-1B's", which is item 3F on the outline which was
handed out to audience members before the talk and is available
on our website at
www.AlanLeeLaw.com. The talk has been edited to improve readability.
)
Strategies of filing - April 1st of course is a great strategy.
If you do it on April 1st, there's a good chance that you'll get
in and be picked in the H-1 lottery. It is not really a lottery
- a lottery is like the New York or New Jersey Lotto or the Visa
Lottery in which they pick up about 50,000 people. Well, those are
lotteries in which a small amount are picked out of millions. Here
you have a situation in which a couple hundred thousand people may
be applying for 85,000 slots. One of the ways to increase your chances
is if you have multiple H-1B sponsors. For example, you interview
at a bunch of companies, and a couple of them are willing to sponsor
you for part-time H-1Bs. Or multiple companies could be thinking
of hiring you on a full-time basis and you say to the employer that
you'll join the company if it successfully gets you the H-1. That
doubles your chances right there. Now last year, there were people
who did something a little different. They thought that they would
pay the fee twice to Immigration. They thought, "We'll put
in two applications from the same employer." Well, believe
it or not, that worked last year. What happened was that if Immigration
selected and approved both cases, it canceled the first approval
and the people were able to keep the second. Of course, Immigration
took both fees. This year, however, Immigration is fairly certain
that it will pass a regulation before April 1st which will nullify
this duplicate H-1 filing procedure. (I was actually thinking about
using it this year before I heard about the plan to stop it).
Common misperceptions of premium processing benefits - Some people
have the idea that if you give Immigration the extra $1,000 for
premium processing, you will have the advantage in your H-1B filing
over everyone else. That answer is "No". There is no advantage
- if you put in the money, all you did was give Immigration the
extra thousand dollars. Immigration goes by who comes out of the
spin barrel. They will not take into account that you paid them
another thousand dollars. They will be glad that you gave them the
extra money, but that doesn't mean that you will get anything more
for it.
No. 4 - the Gap. What's the gap? It is the gap between the end
of your optional practical training (OPT) and October 1st. Unfortunately
the gap occurs to a number of people -many who graduated in December
and May. Their OPTs even with the 60 day grace period do not extend
up to October 1st. What's to be done in that situation? In past
years, Immigration used to be nice. That was when they were INS
before splitting into different agencies, the two most notable being
U.S.C.I.S. and U.S.I.C.E. Before that time, INS allowed F-1s and
J-1s whose practical training expired and had a gap to remain without
working in the country until October 1st. But ever since U.S.I.C.E.
took over the decision making, the answer has been negative to stay.
Immigration makes the decision on a year by year basis, but in the
recent past that answer has been "no". And so what do
you do in the gap? You can go back to your home country. You can
go back to school. You can try and find some other type of non-immigrant
status that Immigration is not going to get mad about. Some people
think, "I'll switchover to B-2. I'll change over to a visitor
status." Sometimes, Immigration doesn't like that because they
can't figure out why a person is going to ask them for a temporary
stay as a visitor when they're actually planning to stay here and
work on the H-1 visa. From our experience, going back to school
is usually the best solution.
Now, Issues after your case is approved but before October 1st
- that's #5 on this outline. Ability to travel if you're accepted
for the H-1, and you want to go back home - what's our feeling on
that? Our feeling is that you shouldn't. We feel that you should
stay in the United States if you do not have a gap problem. You
complicate things when you travel. But let's say that your OPT is
until October 1st, your H-1 is already approved, and you really
want to travel, but you know that the H-1B is not going to kick
into effect until October 1st. If you really want to do it, do you
have a visa in the passport? If you do, you don't have to see the
consul to get a visa before returning. However, if your visa is
expired and you go back, you have to see the American consul and
may have a very difficult time convincing him or her to issue an
F-1 visa for you to come back.
Problems with the sponsoring employer: If you have an approved
H-1B which will begin on October 1st and you have a problem with
your employer before then, what happens if you say "Let me
find another employer and transfer the H-1B visa." Is that
possible? Immigration appears to be ambivalent on this situation.
It doesn't like to see placeholder situations. Immigration has a
suspicion that some people go to some companies and have no intention
to ever work there, and that the H-1Bs are filed only because they
need an H-1B sponsor at the time. Either they're in cahoots with
the company or they're using the company, and with no intention
to work for that employer, they zip off to another company that
they really wanted to work for in the first place. Immigration may
think that this case is deniable. But like I said, Immigration appears
to be ambivalent and we've heard conflicting words by the agency.
The best advice that I can give is that even if you have a problem
with the sponsoring employer, you should try to work with the sponsoring
employer for a couple of months before transferring to another company.
Immigration has said that it will not have a problem in that situation.
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