H-1Bs: A Rare Opportunity for Students/Physicians to Apply

The H-1B system is clearly out-of-sync with the real world.

Persons who qualify for “cap-subject” H-1Bs are allowed to apply starting April 1st each year, but can not start working until October 1st, six months later.

Since the number of applications usually far exceeds the number of available visas, this means that by the second week of April, it is too late to apply.

What about all of the foreign-born students who graduate from U.S. universities in June each year? Since U.S. employers can not apply for H-1B status for them until after they obtain their degrees, by June, it is already too late to do so. One prominent newspaper calls this the “Happy Graduation, Now Go Home!” policy. The U.S. educates and then loses a lot of talent each year.

However, this year is different. Because of the economic recession, there is hope for these students and their employers.

The students can use their one-year Optional Practical Training work permits to start their jobs following graduation. See our “Student” page at

http://shusterman.com/toc-student.html#2
Then, as soon as possible, their employers should seek to change their status to H-1B as of October 1, 2009. This is possible this year because there are almost 20,000 H-1Bs visas remaining.

The same scenario is true for foreign-born medical residents and fellows who received their training in the U.S. using “cap-exempt” H-1B visas.

These trainees complete their residencies and fellowships on June 30, at which time there are usually no “cap-subject” H-1B visas available. This year is different.

Since it is probable that there will still be H-1B numbers available after June 30, U.S. employers should submit H-1B petitions for these trainees as soon as possible.

Additional information is available on our “Immigration for Physicians” page at

http://shusterman.com/toc-phys.html

H-1B Advice for Students and Their Employers

USCIS statistics reveal that only 1,000 H-1B "cap-subject" petitions were submitted each week during the second, third and fourth weeks of April. See

http://shusterman.com/toc-h1b.html#1

At this rate, there will be H-1Bs available until sometime in September. However, I do not believe that this will be the case. Why not?

Because, there are hundreds of thousands of F-1 students in the U.S. Many of these students will graduate from U.S. universities this June, and seek to work in the U.S.

Regarding employment in the U.S., these students should consider the following:

1. They may apply for Optional Practical Training (OPT). This is a fancy term for a one-year work permit. Under certain circumstances, the term of OPT may be extended for an additional 17-months. See

http://shusterman.com/toc-student.html#3

2. If the student's job offer requires a university degree of the type that he/she possesses and if the employer pays them at the prevailing wage, the employer can petition them for H-1B status as soon as the student obtains the required degree. Savvy employers will hire the student initially on OPT and ask the USCIS to change the student's status to H-1B beginning on October 1, 2009.

Why should students seek H-1B status in 2009 if their OPT work permits are valid until 2010?

The principle reason is that this year there are almost 20,000 H-1B slots that are up for grabs. Last year, employers submitted so many H-1B petitions that an individual's chance of obtaining H-1B status was only about 50%. The same thing could happen in 2010 leaving many students high and dry.

I predict that the H-1B petition submissions will rise significantly in June. Therefore, F-1 students who wish to work in the U.S. need to plan ahead.

When is a good time for their future employers to seek the approval of labor condition applications and prepare H-1B petitions for submission to the USCIS?

A good time would be now.