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Contents
Preface
What is H-1B VISA?

• What is H-1B visa

• What is H-1B Cap

• What is the H-1B Lottery

• What is USCIS

How to Get Your H-1B

• What is OPT

• OPT: Start and End Date

• What is LCA

• Premium Process or Non Premium Process

• What are in the H-1B Petition Package

• May the Odds in Your Favor

• From Acceptance to Approval

• What is RFE and What Does It Means

• What is NOID

• What If OPT Will End Soon, But H-1B is Still Pending

• What If It Is a Denial

• H-1B Approved
H-1B Approved, Then What

• Consular Processing

• Steps for Consular Processing

• What is Administrative Processing (SAO)

• How to Deal with Administrative Processing

• H-1B Transfer, Nothing is Transferred

• Lost Your Job, What to Do

• Out of Status vs. Unlawful Presence

• What You Should Do

• What Not to Do

• H-1B Grace Period

From H-1B to Green Card

• Employment Based Permanent Residency

• PERM

• I-140

• I-485

• EAD After filing I-485

• H-1B Extension and Green Card Application Portability

• Favorable Changes on Horizon

Preface
It was toward the end of my fifth year on H-1B visa, when I was about
making another career move. I had this idea to write a book about H-1B.

I was preparing documents of from prior H-1Bs for the upcoming H-1B
transfer and the PERM process, It really surprised me that during these five
years, I had 4 H-1B visas sponsored by four different employers and the fifth
one was about to be filed.

I am not an immigration attorney, but in the past several years, I did a lot
research on my own and also consulted immigration attorneys on this subject
multiple times. Relying on what I learned, I sailed through different type of
H-1B related issues (except the H-1B lottery, which I never experienced) and
walked out some very challenging situations an international professional
may face.

Among those H-1B visas, two were actually filed within 6 months, when I
was managing to recover from a job loss situation.

In 2009, I graduated directly into the aftermath of the 2008 Financial Crisis.
With the peak unemployment rate at 10%, there were very few job opening
available for new graduates and even fewer for those who need H-1B
sponsorship.

During 12 months OPT period, I was constantly jumping between short term
contract positions and actively interviewing with companies across the
country. Although I managed to be financially sustainable, didn’t get any
breakthrough on my job search till the OPT ended. To be fair, there was one
small company willing to sponsor H-1B for me, but the petition was rejected,
after two rounds the RFEs, on the basis that USCIS didn’t believe this
company had the financial resource to pay prevailing wage.

By the end of my OPT, I was still determined to give a final push. I extended
my job search for 3 more months by switching back to F-1 student visa.
Amazingly, this desperate final attempt paid off. I was hired by a boutique
management consulting firm. Due to the limited opportunities in the job
market, very low number of H-1B petitions were filed with USCIS in that
fiscal year, as a result there was no H-1B lottery. The following year was a
busy one, involves constantly traveling. But I enjoyed and cherished it.

However, shortly after a year, the company lost a major client and decided to
downsize just before the holiday season. I fought for 7 months to get out this
situation and ended up to file one B-2 visitor visa, one H-1B to maintain my
legal status and support myself. Then another one, so I can finally got back
on track of my career. During those seven months, when the first H-1B was
still pending, the second one was still beyond horizon; a beloved family
member in my home country was stroked by cancer…… Suddenly, in this
visa and legal status mess, I urgently need to travel.

At the end, everything worked out. As I said at the beginning of this book,
I’m not an expert on this subject. But to navigate through those crises, I did
my research and what I learned helped me to work everything out. I also
noticed that the only a few available books about this topic was oriented to
help employers rather than international students and professionals. For the
international students and professionals on this journey just like me, there
should have a simple book including most of the answer they are seeking.

What is H-1B visa?

Let’s start with this obvious question, because the definition itself actually
explains lot questions, such as why the process and system are laid out as the
current way? Why it is so inflexible for H-1B workers? Why there is an H-1B
lottery and why the process is not that transparent?

What is H-1B Visa?

The H-1B is a nonimmigrant visa in the United States under the Immigration
and Nationality Act, section 101 (a) (15) (H). It gave the U.S employers a
way to temporarily employ foreign works in specialty occupations.

We are not interested in how the H-1B program was defined in legislation,
but as an international student or professional, here are what relevant to us:
The H-1B visa program is created to benefit US employers. That is why H-
1B work-authorization is strictly limited to employment by the sponsoring
employer at a specific location and during a specific time frame. Yes, the
location is also specifically defined in H-1B petition, because the location
will have an impact on prevailing wage. Within H-1B visa program, US
government also lay out rules to protect the US workers and the prevailing
wage is part of that part (we will discuss more when we reach there).

When employment with this sponsoring employer is terminated, H-1B visa

will be out of status immediate. By principle, the H-1B worker should leave
US like Scott beaming up Captain Kirk in Star Trek, instantly gone. A
contrast to the common believes circulating on the internet, there is no so-
called grace period for H-1B (although “out of status” is not equal to
“unlawful presence” and no grace period does not mean you don’t have time
to respond in that situation, we will discuss these in chapter 3).

When you switch jobs, you will hear people talk about H-1B transfer, but
nothing is really transferred. A completely new H-1B petition will be filed
with your next employer. The reason that people tend to call it a “Transfer” is
simply because within your 6 year duration, you don’t need to go through
that H-1B lottery again. Then what is this 6 years duration? That brings us to
the next topic.

H-1B visa is temporary. The duration of H-1B visa is 3 years and it can be
extended up to 6 years in total. In other words, from the day your first H-1B
visa starts, a 6 years countdown clock starts ticking. After accumulating 6
years on H-1B visa, foreign nationals will need to leave the country for at
least 1year, then US employer can sponsor H-1B visa for them and they will
subject to the H-1B cap again. The only exception to extend H-1B beyond 6
years is employment based permanent residency was filed by the employer
before the end of the fifth year. We will discuss this in Chapter 4.Let’s use an
example to illustrate this 6 years countdown clock:

Vic is an intentional student. His employer (Company A) submitted an H-1B

petition for him by the April 2016, he is lucky that his case was selected for
processing (win the H-1B visa lottery) then in August 2016, his H-1B visa is
approved, but it will only be activated by October 1, 2016.
On October 1, 2016, Vic’s H-1B is effective. Vic continues his work at
company A. one or two months before October 1, 2019, Company A’s HR
department notice Vic that the 3 years duration is almost up, they will renew
his H-1B (although technically, it is a new H-1B petition and there is nothing
be renewed or transferred, we will explain this in chapter 3).

He gets his second H-1B approved and keeps working for Company A for
another year. This puts him a year in his second H-1B visa. Around this time,
Company B notices Vic’s talent and extends a better job offer and he accepts
it. Company B files the H-1B petition for Vic, although the typical duration
of H-1B visa is 3 years, but Vic’s H-1B with Company B only gets 2 years
duration, till the October 2, 2022.

You can work for different employers and change jobs as frequently as you
like, but you cannot stay beyond this 6 years duration. Even in some rare
cases, USCIS made a mistake on their side. Put it into our example. Let’s say
USCIS granted Vic’s H-1B with company B another three years. But it is
Vic’s responsibility to avoid over staying beyond 6 years!

Then what happens after you used up all 6 years’ time? In that case, if Vic
employer didn’t’t file a PERM (Labor Certification, which is the first step of
applying for employment based permanent residency or commonly called
green card) for him by the end of the 5th year of his H-1B (We will discuss
why it is the 5th year in chapter 4). He will have to be outside US for a year
and after that, if Company B is willing to offer him the job and file H-1B
petition for him, he will go through the “H-1B Lottery” again.

Is there any case that the 6 year countdown clock will pause? Yes, of course,
to make sure you fully understand this, let’s go through another example:

Let’s say after October 1, 2016, (when the 6 years countdown clock start
ticking) Vic works for a company A for 2 years, then he decided to quit the
job and continues his education (not on H-1B visa anymore, transfer back to
F-1 student visa), he studies for his Ph.D. for the following 4 years. By
October 2, 2022, He graduated and an employer (Company B) extends him a
job offer, Vic’s H-1B will have 4 years left.

In this example, company B can file a petition which will routinely grant Vic
3 years’ stay and work in US for company B. Then company B can extend
one more year for Vic after that. Then it will hit the 6 year mark again.

The H-1B visa program is created around this “specialty occupation”. By

definition, it means the position offered to H-1B holder requires theoretical or
practical application of a specialized knowledge. In practice, it means the
applicant must have, at least, bachelor or equivalent educational background.
Also remember, the H-1B visa program was intended to be a supplement, not
a competition to the domestic supply of talents in these “specialty
occupation”. For H-1B worker, as a foreign citizen, all of us may know one
or more than one foreign language, but foreign languages skill will not be
counted as specialized knowledge in most case.

For most of the readers, we came to the U.S. for our undergraduate or
graduate degree then seek career opportunities. This specialty occupation
requirement does not concern us. But the logics behind it, a supplement not
competition to domestic supply of talents, explains why there is a CAP
(65,000 plus 20,000 additional visas for applicants with US postgraduate
degrees) and why there is an H-1B prevailing wage.

What is the H-1B Cap?

By legislation, US government limits the number of foreign nationals who

may be issued an H-1B visa during each fiscal year to 65,000. There are
another 20,000 for foreign nationals holding a master’s or higher degree from
US universities. There are also exceptional. Foreign nationals who work at
universities, nonprofit research facilities associated with universities, and
government research facilities are cap-exempt. For these type organizations,
they can hire as many H-1B visa workers as they wish. But the cap-exempt
cases are not the focus of this book.

In recent years, the number of H-1B petition being filed increased

dramatically, while the CAP number is unchanged. As a result, the odd of
being randomly selected (H-1B lottery) decrease greatly. In 2010, the year
when I got my first H-1B visa, the number of H-1B petition filed was still far
away from (65,000 plus 20,000) H-1B cap number till the end of year. There
was no random selection during that fiscal year. However, in May 2016,
USCIS said that they received 233,000 H-1B petition, comparing to the
65,000 plus 20,000 H-1B cap number. You can tell the odds of H-1B lottery
is not that promising in recent years. We will discuss the options when the
odds not in your favor in later chapter 2.

The so-called H-1B lottery is a direct product of imbalance between fixed H-

1B cap number and the demand on job market (number of petitions actually
being filed). The H-1B lottery refers to a computer random selection process
conducted by USCIS. “Lottery” is not the official terminology and it can be
misleading. But it does reflect the nature of the process. It is random. As a
result, we can’t influence or predict the outcome.

Every April, on the first weekday, USCIS starts accepting the H-1B petitions,
which if approved later, will be effective (employment authorization are
officially granted) on October 1. USCIS will label each petition with a unique
ID number and group them into the cap-case group (65,000 pool) or
Master/or higher degree Cap group (20,000 pool). When number of received
for each pool is beyond the cap number, USCIS will use computer generated
random selection to pick the 65,000 petitions from cap-case pool and 20,000
petition from Master/or higher degree cap pool.

There is also a C/S cap group, which only apply to citizens from Chile and
Singapore. This is the result from the Singapore–United States Free Trade
Agreement and Chile–United States Free Trade Agreement. Of the 65,000
visas allocated to the capped H-1B visa program, a total of 6,800 are reserved
for use for the H-1B1, which is a variant of H-1B visa. 1,400 are assigned for
Chilean citizens and 5,400 are assigned for Singapore citizen. The C/S cap
group is not the focus of this book.

Back to this random selection process. If your case is selected,

congratulations! But it does not means the petition is approved, it just means
that USCIS will open the envelope of the petition and start reviewing it and
then make an approval or denial decision. After the selection, USCIS will
inform all selected petitioner with their case number for tracking purposes.
And of course, the check for processing fee is cashed at same times. Actually,
many people and their immigration attorneys learned their cases being
selected by noticing the checks being cashed first rather than waiting the
official notification from USCIS, which usually come few days later.
What happen if you case is not selected then? You would get a letter and the
filing fee will be returned to the employer. The letter will start with a
sentence like this:

Your petition, supporting documents, and fee are being returned to you, your
petition was returned for the following reason:

All H-1B cap-subject petitions received at the California or Vermont Service

Centers from April XX, 20XX to April XX, 20XX were subjected to a
computer-generated random selection process, USCIS received your petition
during this time frame; however, it was not among those randomly selected
for processing.

Following these are some instructions suggesting you to file petition for next
fiscal year. From next chapter, we will discuss the path to get your H-1B visa.
We will also discuss how to deal with such situation, when your petition is
not selected.

What is USCIS?

The last but least topic we want cover here is what USCIS is. USCIS is the
government agency, part of the United States Department of Homeland
Security (DHS) that oversees lawful immigration to the United States. One
thing differentiates USCIS from other US government agencies is that it is
funded almost completely by the fees paid by individuals and organizations
for immigration and naturalization services.

Now, you probably get the idea why the filing fee for H-1B (I-129 form) is
$325 and there are also a $1,500 fee for the H-1B visa USCIS “Education and
Training Fee” (if employer has 25 or more full time employees), $750 fee for
employers with fewer than 25 full time employees. USCIS has the following
responsibilities:

• Administration of immigration services and benefits

• Adjudicating asylum claims

• Issuing employment authorization documents (EAD)

• Adjudicating petitions for nonimmigrant temporary workers (H-1B, O-1,
etc.)

• Granting lawful permanent resident status

• Granting United States citizenship

Another government agency that we will mention in this book is the

Department of Labor. For H-1B and employment based permanent residency,
their role is to make sure the employment of foreign citizen will not adversely
impact the US workers.

How to get your H-1B visa?

In this chapter, I will use the typical experience of an international student as

examples to walk you through each stages of the process.

We all know that, as an international professional, you cannot apply for H-1B
visa by yourself. Only an employer can sponsor you and file a petition on
behalf you. That’s why in all documents, your employer is the petitioner and
you are the beneficiary of that petition.

Then this lead to a question, what type of employers can sponsor H-1B?

Any US Employers can sponsor H-1B petition, as long as they can meet the
legal obligation, which is enforceable by heavy civil and criminal penalties.
With these legal requirements, involvement of federal government agencies
and immigration attorneys, it is not difficult to imagine why smaller
employers are often intimidated by the H-1B process. We will discuss the
details of these obligations when we explain the Labor Condition Application
(LCA).

A typical timeline for an international student may look like this: secure a job
offer and applies for OPT (Optional Practical Training) before graduation,
then starts working for the new employer with OPT, then employer prepares
and files H-1B petition, then When OPT ends approved H-1B arrives. So
let’s start with OPT.
Operational Practical Training (OPT)

It is a period which undergraduate and graduate students with F-1 visa to get
practical training to complete their education, under the condition that the
students have completed or have been pursuing their degrees for more than 9
months and it is approved by USCIS.

It is an extension of your students visa (F-1) and you can work during this
period. You can work for any employers on paid or unpaid, full-time or part-
time position or internship, as long as it can be categorized as a practical
training associated with your education. It is typically one year, but for the
STEM (science, technology, engineering, or mathematics) graduates, the
duration of OPT is 17 months. This is a huge advantage for STEM graduates.
For H-1B lottery, 17 months OPT allows you to take a second shoot, if the
odds is not in your favor during the first time.

You can only get an OPT for each level of education you received. Let’s
bring back our friend Vic and some examples to illustrate this:

Vic completed a master’s degree in accounting then he used all 12 months

OPT, after that, he decide to get a master degree in finance. But when he
graduates with MS in finance degree, how long his OPT will be?

Zero! Because both degrees are at same level: Master. It does not matter how
many degrees you have (in this case master degrees), for all your same level
education experiences, you only get one OPT.

After Vic completed his master’s degree in accounting and used all 12
months OPT time, then he decides to get a master’s degree in mathematics.
After graduate with his second master’s degree, he apply for OPT again.

How many months of OPT will he get this time? He will get 5 months.
Because as a graduate in STEM, he is eligible for a 17 months OPT.
Although he used 12 months already for a same level degree.

If Vic got his bachelor degree (not STEM) in US and then used all his 12
months OPT time then pursued a master’s degree (not STEM), after that he
apply OPT again.
How many months he will get? He will get another 12 months. Because the
first OPT is for his undergraduate degree and the other one is for his graduate
degree.

There are pre-completion OPT and post-completion OPT. Since the focus of
this book is H-1B and we touch OPT is merely because OPT is the common
stage before H-1B, we will only discuss post-completion OPT here.

In general, international students apply their OPT on campus, via an

international student office. First, the international student office at university
will confirm that you are expected to graduate on time. You may apply for
OPT 90 days before your final semester ends and not later than 60 days after.

Because OPT is an extension to the student visa status, university will update
your I-20 form then the students can submit Form I-765, along with some
paraphernalia (2 US Passport-sized photos and a fee) to a designated USCIS
office address. Most universities provide very detailed guiding to their
students on this subject. So I will not waste your time to explain every detail
here and just want emphasize some key areas you need plan ahead.

After approval, USCIS sends an Employment Authorization Document (EAD

card, see the following example) to the address specified by the student. In
future, it will be needed again when you file H-1B, PERM, etc., we will
discuss in later chapters. The typical “processing time” for OPT can be 3-4
months. That’s why you should plan ahead and target submitting form I-765
about 3-4 months before expected OPT start date. However, USCIS only
accept applications no more than 90 days before graduation.

OPT: The Start and End Date

Besides the timing on filing the application, when you plan OPT to start and
end are other important decisions to make. Because, you are allowed to work
only during the EAD card is valid.

For students already with a job offer, this is easy, make sure OPT starts when
you start working on your new job. For those who are still searching for jobs,
I highly suggest choose a relatively late starting date. The logic behind this is,
the duration of OPT is fixed, by adding a little time before this fixed period,
overall you will get slightly more time to stay in US for your job searching or
explore other options.

You don’t need a job offer when applying for OPT. But students on post-
completion OPT may not accumulate more than 90 days of unemployment,
or your F-1 visa will be out of status. For those STEM students, not only the
duration of OPT is extended, this 90 days of accumulated unemployment
limit is extended to 130 days. Given the definition of employment during
OPT is so open. It shouldn’t be a challenge to maintain employed.
Universities may require you provide the employment information for record.

In theory, given the maximum 90-days accumulated unemployment period,

and the 60-days grace period after graduation(remember student visa does
have a grace period, but H-1B does not), together it means that you can start
working on OPT as late as 150 days after graduation by choosing a late
starting date and using the full unemployment period before OPT starts. For
the STEM graduate, the 90 days unemployment period is extended to 130
days, so it is 190 days after graduation.

We have covered enough details about OPT, let’s move to the H-1B visa.
Although filing H-1B is on employer, but H-1B is such an important matter
for your career and life. It is important to know every detail by yourself.
Especially for many middle or small sized employers, your case may be the
first H-1B petition ever for them. When an inexperienced immigration
attorney was preparing my second H-1B petition, I found mistakes made by
the attorney and was able to correct it. Besides, understanding the process
will help you know your options and enable you to negotiate with employers
better.

The Labor Condition Application (LCA)