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Foreign Students and the H-1B Cap Gap

With the school year coming to a close, it’s time for foreign students to start thinking on ways to continue to remain in the United States, following the conclusion of their academic programs. Some college students on F-1 visas who are authorized to work pursuant to the Optional Practical Training (OPT) program are able to find jobs in their field of study and may continue to remain in the US their stay on an H-1B visa. However, moving from an F-1/OPT directly to H-1B can create a gap of time between the expiration of the OPT and before the H-1B visa starts. Fortunately there is a Cap-Gap, which allows applicants with pending or approved H-1B’s to extend OPT work authorization to cover this gap.

What’s required for an F-1 extension?

students-1197349-mIf you’ve secured an employer that will apply for an H-1B on your behalf, it’s essential that the H-1B is timely filed. The H-1B should be applied while the OPT is still in effect.

If the H-1B application is selected in the lottery and approved, an automatic F1/OPT extension will take place. On October 1st when the H-1B visa can officially take effect, the applicant should request a change of status. This will allow for a smooth transition from F-1/OPT to H-1B.

Things to watch out for

  • If the H-1B application is not chosen in the CAP or the H-1B application is denied, the applicant will be granted a 60-day grace period. During this time the applicant must make plans to leave the United States.
  • Once an applicant enters the 60-day grace period, the applicant is no longer authorized to legally work inside the United States.
  • Travel abroad during the OPT period is allowed, however the applicant will not be able to re-enter the United States without a valid F-1 visa, as stamped on the passport. Students are advised to have their latest I-20’s, as well as proof that they are employed pursuant to their OPT, in the event of foreign travel. If the applicant does not have a valid F-1 Visa, the applicant must apply for an H-1B visa at consular post outside of the United States before attempting to re-enter.
  • F-1 extensions are generally granted until September 30th. However, the H-1B employer may intend for employment to start later than October 1st which can create another gap. Should this happen, the Designated School Official of the student on F-1 can fix this gap. It is important to pay close attention to the start day of H-1B visa and end date of F-1.
  • Getting laid off by an H-1B employer before H-1B visa takes effect does not mean the applicant has forfeited his visa and must exit the United States. The student may be able to recover unused Optional Practical Training and continue working in the United States, as long as several additional requirements are met.

To ensure you are eligible for F-1 extension under cap gap it is important to be cautious of timelines and required paperwork. Because there is a transition from one visa to another, accuracy is important to ensure the applicant does not find himself in the United States without a valid visa status. Consulting an attorney is a good idea to ensure all filings are done correctly.

Contact the Law Office of Sweta Khandelwal today to discuss F-1 student visas, H-1B’s the Cap-Gap or any other immigration questions you have. Ms. Khandelwal is an experienced immigration attorney located in the Silicon Valley.

 

Cited Sources:

Extension Of Post Completion Optional Practical Training (OPT) and F-1 Status forEligible Students under H-1B, USCIS, March 15, 2013

 

 

Tags: #F-1, #h-1b, #immigration law, #immigration law attorney, #immigration law lawyer

F-1 Student Visa Options After Graduation

Many universities are home to foreign students from all over the world. These foreign students spend four years earning a phenomenal degree from American universities while also building friends and network connections. However, for many of these students are forced to leave the United States because they haven’t secured proper post-graduate visas. A F-1 student visa, which is what most if not all of these students are covered under, is temporary and only allows a person to stay in the United States as long as they are a student. In this article, we will explore what kind of options are available to F-1 visa holding foreign students after graduation.

F-1 -> OPT

Although there is no such thing as an “OPT visa”, a student may extend their F-1 status if they can secure optional practical training (OPT). There is a maximum of a single 12 month extension and starts upon graduation or completion of course of study. This is mostly handled through the F-1 student’s school’s international students department.

F-1 -> H-3

For a student who doesn’t want to stay in the United States for an extended period of time but still wants to pursue further training may find the H-3 visa appropriate. The H-3 visa is for “trainees” who do not have the appropriate education or work experience for a particular position, but would like to be trained to do so. An H-3 visa seeker can stay for two years, but cannot transfer to H-1B or L-1 visa status and must intend to transfer the knowledge and training that they receive back to their home country.

F-1 -> H-1B

An H-1B visa covers the typical scenario when a student is able to secure a position after graduation. An H-1B visa would allow the student to work without the one year restriction the OPT has. However, H-1B visas are notoriously difficult to secure, as we have covered before. Students who are looking for a H-1B visa to cover them this fall should speak to an attorney soon, as the filing for H-1B visas starts on April 1, 2014 and last year the quota filled up in only four days.

F-1 -> R-1

F-1 students may also pursue an R-1 visa if their post-graduation work is religious in nature. The F-1 student must show that they were a member for at least 2 years preceding the application. The organization itself must also prove that it has tax exempt status as a religious organization. Site visits are also known to occur to verify the religious nature of the organization and the work of the R-1 visa seeker.

F-1 -> Green Card

There are five employment based green card categories and five family based green card categories. Each one requires different forms of proof, different requirements to satisfy, and is for different kinds of people. Students should speak to an immigration attorney to see which green card option is the most appropriate for them.

There are many nonimmigrant visa options we did not cover in this article, including E-1/E-2 visas, L-1, B, J-1, Q, and others. The options are wide and varied, and sometimes require coordination with the student’s school, potential employer, and an immigration attorney. Students should start exploring their options early, especially if they expect to graduate this semester.

Tags: #F-1, #f-1 visas, #immigration law, #immigration law attorney, #immigration law lawyer, #Student Visa

Visas and Residency for UC Tuition Purposes

It is no secret that many immigrants are young students seeking to attend the United States’ top universities. Many of these universities are in California, but California universities’ out-of-state tuition rates can be prohibitively expensive. What is considered a “resident” for California university tuition purposes has some interplay with immigration laws. This article will explore some of them here, based on the University of California tuition guidelines.

For UC tuition purposes, California has two requirements to satisfy: a physical presence requirement and an intent requirement. However, for noncitizens who hold nonimmigrant visas (H-1B, F-1, etc.) there are a specific list of visas that will not be able to satisfy either of these requirements. Some common examples are B-1/B-2, F-1, F-2, or H-1B visas. These nonimmigrants must change their status to another visa type or adjust status to obtain legal permanent residence status (i.e., a green card).

However, even if one has a green card or have a qualifying nonimmigrant visa, it does not mean they automatically qualify for “residence” status under the UC tuition guidelines. They must still satisfy the two requirements set out above: physical presence and an intent to be a California resident. Sometimes, nonimmigrants and green card holders may spend significant amounts of time abroad for many reasons. Even if such a noncitizen buys a home in California and pays California taxes, the existence of other homes in other states or abroad may cause the University of California to question whether the student and his or her family intend to make California their home.

More specifically, a person must spend at least 366 days (1 day and 1 year) in California to satisfy the physical presence requirement. Some breaks for travel are acceptable, but large breaks in the 366 day requirement may cause problems with obtaining California residence status. Also, for the intent requirement, this is a fact specific inquiry that depends on each individual case. Some examples of documents that will help satisfy the intent requirement are sale records of previous homes, evidence of a place of residence in California, receipts, employment records, having a California driver’s license, and registering to vote in California. These are again just examples and an attorney should assess the entirety of the situation.

Another issue for young noncitizens attempting to become California residence for UC tuition purposes is the relationship they have with their parents. Often, even if the student lives in California, if the parents are residing elsewhere then it may prevent being considered a California resident. One way around this is to show that the student is wholly financially independent and need not depend on his parents for financial assistance, but this is a rare exception.

If you have questions about the effect your visa or your immigration plans may have on attending a University of California school, or if you have other immigration questions, contact our office today so that we may assist you.

Tags: #F-1, #h-1b, #immigration law, #immigration law attorney, #immigration law lawyer, #UC Tuition

The Startup Act of 3.0 – a Path to Citizenship for Entrepreneurial Immigrants

In the midst of all of the CIR, yet another piece of legislation has entered the fray. The Startup Act of 3.0 is finally getting some traction in Congress, with its recent introduction in the House of Representatives and Senate.

Introduced by a group of legislators led by Senator Jerry Moran (R-Kan.), the Act would allow for 75,000 individuals who are already in the United States on either H-1B visas or F-1 student visas to gain a path to citizenship. To do this, they would have to invest at least $100,000 and start a business that employs at least two full-time employees. The entrepreneurs would have then three more years to get to at least five employees and then receive permanent legal permanent residence (a “green card”).

“The Kauffman Foundation shows data that nearly all net new jobs created over the last 3 decades – nearly 40 million jobs – were created by these high-growth entrepreneurial businesses,” Senator Moran says. “In fact, 40% of Fortune 500 companies were started by first- or second-generation immigrants. The businesses high-skilled immigrants create are the source of jobs for Americans, the source of innovation and economic growth.”

The Act also benefits STEM (Science, Technology, Engineering, and Math) Masters and PhD students who are on visas to conditionally receive a green card if they remain in their fields for at least five years. Afterwards, they could get permanent green card status.

This bill has been introduced twice before, once in 2010 and once in 2011. With the recent buzz about CIR this year, hopefully this Act will do better than its two predecessors.

A path to citizenship for entrepreneurs already exists through the EB-5 category. However, the investment threshold can be prohibitive for most start-ups. Most H1-B and F-1 student visa holders do not have the $1,000,000 or $500,000 needed to immediately invest and gain green cards through the EB-5 program, especially when typically it only takes $20,000 to $30,000 to build a high tech business. Furthermore, there must be at least 10 jobs created for each EB-5 investment.

Our office is enthusiastic about the Startup Act 3.0. H1-B and F-1 visa holders contribute enormously to the American economy, through their minds, technical skills, and entrepreneurial spirit. It is only fair to offer them a chance to stay in the United States and further contribute to our economy while also creating jobs for local communities.

Contact us if you have any questions about this article or about your own immigration situation!

Tags: #CIR, #F-1, #h1-b, #immigration law attorney, #immigration law lawyer, #STEM




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