Alan Lee's Talk At Rutgers University On January 27, 2008 - Q&As
posed by the audience concerning H-1B and NIW issues (Part 6 of
6). Published in Sing Tao Weekly on 3/23/08
By Alan Lee, Esq.†‡
(This is the last of six parts of the talk given by Alan Lee, Esq,
before the Rutgers University Chinese Students and Scholars Association
on January 27, 2008. In this part, Mr. Lee answers questions posed
by the audience concerning various aspects of his talk. The questions
are focused on H-1B and NIW issues. )
Q. I am studying for my Ph.D., will graduate this year,
and I plan to work as a postdoc. Can I apply for a green card under
NIW? Can you tell me what is the most important factor in an NIW
application? Publications, achievements, recommendation letters?
Do the papers contribute much to my case? Most of the papers are
published in China and are in Chinese. I had NSF funding in China.
Should the recommendation letters come from people from different
backgrounds, research institutes, industry or government? How can
I relate my major, Environmental Science and Chemistry, to the national
interest?
A: What's an important factor? Papers published in China? I don't
really think that Immigration is impressed by that. They would like
to see peer reviewed publications, people who have a number of papers
published over here, or in Europe, or in any other venue where they
have been peer-reviewed. Being the first author on these types of
papers is much better. If we can point out that the publication
itself is one of the top publications in the field, even better.
Recommendation letters? We'd like to get a bunch of recommendation
letters, at least five to start. You should also be ready that Immigration
may ask you for more later on. These should not be from your buddies
or people who graduated in the class ahead of you, or all from your
professors in schools or institutions that you have attended. Immigration
would rather like recommendation letters from people who don't know
you except professionally. And when I say professionally, I mean
people who have no close association with you, are not working with
you, collaborating with you, or went to school with you, or taught
you. Of course, if the basis of the NIW request is the applicant's
work with his professor who is the supervisor and they're both working
on this huge project, we'd like to see a long letter from the professor.
We'd like to see whether the school or the professor himself has
some fame. We'd like to see the fame of everyone who is writing
a recommendation letter. What qualifications do the recommenders
themselves have to say that the applicant's immigration is in the
national interest? Agency letters, like in this case involving Environmental
Science, from the EPA, would be great. These are some of the things
that Immigration might be looking at. NSF funding in China? No,
that would not be given much weight at all. What are the merits
of Environmental Science and Chemistry as a field of national interest?
Yes, that is certainly one of the fields of national interest. Biology,
Biochemistry, Aerospace, most fields are of national interest as
long as you're not studying pure science. I mean, for example, Mathematics,
we might have a difficult time trying to figure out how a person
trying to solve Poincaire's Solution might be in our national interest.
But most of the fields are.
Q: How long should we wait to receive a receipt for our
OPT application?
A: That's a good question for which I have no answer because I
do not deal with OPT [laughter].
Q: If I have not received a receipt from Immigration in
three months, does that mean that Immigration has lost my application?
A: Immigration is telling the public that it has slowed down on
the issuance of receipts. That is because of the summer surge of
300,000 + I-485 applications that they received as part of their
wonderful little fiasco called Visagate. Because of it, however,
Immigration slowed down the receipts for a whole bunch of categories.
There was an attorney's conference in December in New York in which
U.S.C.I.S. told us that they are catching up with their receipts
and that they hoped to have them finished by January. Whether or
not they do is up in the air but that is what they told us.
Q: I will graduate with a master's degree in December of
this year. My husband plans to submit for a green card through NIW
or EB-1. How do we arrange my OPT, H-1B, and green card applications.
A: In this case, since you're graduating, you'll do your OPT and
your H-1B. Hopefully, you'll get your H-1B. If you don't, you'll
either probably go back to school, or if your husband is holding
some other type of nonimmigrant status, you could probably join
as a dependent onto his status. Green card application? You can
either do it yourself if you have an employer willing to sponsor
you. Otherwise, if you're going to ride on your husband's application,
you're not really going to be part of the application until the
time of the I-485 anyway. At that time, you could put in both I-485s
at the same time. If you need advance parole or employment authorization,
you could ask Immigration for them at the same time that you file
the I-485s.
Q: How can we transfer from an academic H-1B to an H-1B
sponsored by a company?
A: You're generally going to have to catch the cap. If you are
going to quit a job which is cap exempt and move to a company which
is not cap exempt, you have to qualify for the cap. If you're not
going to be able to make it in this April rush, that means that
you are sort of stuck.
Q: Before I graduate under my F-1 visa, can I apply for
an H-1B?
A: If you have an undergraduate degree or some other type of degree
that might qualify, great. If you have no other type of qualifying
degree, that's usually "no" unless you are able to make
a combination of education and experience that could qualify for
an H-1B. You should note also that a person who has completed all
requirements for the degree and is only waiting for the diploma
to be issued is qualified for the H-1B. Immigration will accept
a letter from the school stating that you have completed all requirements
for the degree. It (the letter) cannot say that you have completed
all of your classes, because that is not sufficient. Immigration
wants to know that you completed all of your requirements. But if
it says "all the requirements", Immigration will take
that letter.
Q: Please introduce how to do an H-1B transfer.
A: An H-1B transfer can be done that at any time provided there
is no cap issue like moving from academic cap exempt institution
to an organization in which the cap applies. If you are in an H-1B
cap company at this time and you thus already have a cap number,
you can transfer at any time because you will keep that number.
And so it does not make any difference whether you transfer in April,
May, June, July, August or September. The new employer must go through
an H-1B process - that is the same paperwork as for the initial
H-1B, the only differences being that you don't have to qualify
for the cap again because you already have it, and the employer
calling this a transfer, or extension petition.
Q: Will it work that a person can apply for H-1B visa on
April 1st with a letter saying "All but degree"? Will
this application be denied?
A: "All but degree" -- what does that mean? If that means
you already completed everything and are just waiting for the graduation
ceremony, that's one thing, but if it means that you have not done
your dissertation or defense or one of the papers required for graduation,
that might be a problem. We would strongly suggest getting a more
definite letter from the school that the individual has already
completed all requirements for graduation if that is the case.
Q: I have a master's degree in sociology and a bachelor's
degree in engineering. I have a job offer in engineering for which
the company will apply for my H-1B in April. Can I qualify for the
Masters cap through my master's degree in sociology even though
it is not related to my job?
A: Yes, as long as the master's degree was earned at a U.S. institution.
Immigration has made clear that an unrelated U.S. master's or higher
degree will qualify an individual for the master's cap.
As that appears to be the last question, I want to again thank
the Rutgers University Chinese Students and Scholars Association
and Mr. Cheng Gao for the opportunity to speak with you today. I
wish you all good luck on your future immigration.
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