H1B Cap Update for Fiscal Year 09-Office of International Education - Carnegie Mellon University

Sunday, January 20, 2008

H1B Cap Update for Fiscal Year 09

Date:    January 18, 2008
TO:      Carnegie Mellon F1 and J1 International Students
From:   Office of International Education (OIE) Director and Staff

RE:       H1B Cap Update for Fiscal Year 09

Dear Carnegie Mellon foreign students:

We are writing to inform you about anticipated H1B cap issues and the related interface with F-1 OPT or J-1 Academic Training work eligibility.     The following topics are addressed:

1) H1B Cap Basic Info
2) Historical Info (from FY08)
3) H1B Eligibility
4) Degree Completion
5) Situation Expected this Year (FY09)
6) Next Available Cap (FY10)
7) F1 OPT and J1 AT Transition to H1B
8) Strategies for Students
9) Dealing with the Stress

H1B Cap Basic Info

The US government sets a cap (i.e. limit) on the number of new H1Bs employees each year.   That number is 65,000 plus an additional 20,000 for people who have masters or PhD degrees from US institutions.    There are H1B set-asides for citizens of Chile and Singapore.    These cap numbers become available on October 1, 2008 for the period October 1, 2008 to September 30, 2009; the earliest that employers can apply on behalf of current or future employees is April 1, 2008.  

Historical Information (FY08)

In Spring 2007, in a two-day period (April 2 and 3), over 123,000+ properly filed petitions were submitted to the USCIS for 65,000 available H1B cap numbers.   Thousands of H1B petitions were rejected by random lottery.    The additional 20,000 H1Bs for people with masters and PhD degrees from US institutions were filled by April 28, 2008 and no more petitions were accepted after that date.  

H1B Eligibility

Basic criteria for H1B employment include: (1) payment of a “fair” wage by the employer, (2) a job that requires a minimum of a bachelor’s degree, and (3) the employee/beneficiary having the degree that is required for the position at time of H1B submission to the USCIS.   

Example 1.   If the employment requires a masters degree and prefers a PhD degree, the H1B petition can be submitted to the USCIS after the masters degree has been completed (and formally documented as being complete by the registrar’s office,) but before the PhD is complete.  

Degree Completion

According to the USCIS, the required degree (whether bachelors, masters or PhD) needs to have been completed and confirmed as complete by the registrar’s office (i.e. Enrollment Services and the HUB) at the time that the petition is submitted, i.e. April 1.    Unfortunately, students who will complete their degree requirements in May 2008 can not provide the required documentation to employers, their attorneys, or to the USCIS by the April 1 filing date.  

Situation Expected this Year (FY09)

While no one can be sure about the situation in April 2008, it is widely anticipated that the cap number of 65,000 will be reached on the first filing day, Wednesday, April 1, 2008.  Furthermore, it is expected that the number will be oversubscribed and that thousands of petitions will be rejected by random lottery.  

As for the additional 20,000 available to those with US masters or PhD degrees, we are similarly unsure how long that number will hold out, but most employers will be aiming for a April 1 or early April filing date for eligible employees or future employees whose degrees have been completed by the filing date.   

Next Available H1B Cap (FY'10)

Barring US congressional action (none is anticipated in 2008), the next cap numbers are not available until October 1, 2009 and may be applied for starting on April 1, 2009.  

F1 OPT Transition to H1B

Most Carnegie Mellon students will apply for and use their Optional Practical Training (OPT) in the period following their program completion.  The challenge can be, however, the transition between the end of OPT and the beginning of H1B.   If there is a gap between the end of the OPT and the start of the H1B employment, an F1 may remain in the US (but with no legal work authorization) for up to 70 days (using both F1 and H1B grace periods), but may not work.   If the gap is longer than 70 days, students must seek other solutions because both the ability to legally stay in the US and to work in the US will likely be impacted.   Solutions should be discussed with future employers and/or their immigration attorneys.  

J1 Academic Transition to H1B

Students who are in J1 student status and will apply for Academic Training (AT) may experience some of the same transition issues as F1 students (above.)  Additionally, J1 students will need to apply for and receive a waiver of the 2 year home residency requirement prior to apply for H status.  

Assuming satisfaction of the 2 year home residency requirement, the challenge can be, however, the transition between the end of AT and the beginning of H1B.   If there is a gap between the end of the AT and the start of the H1B employment, a J1 may remain in the US (but with no legal work authorization) for up to 40 days (using both J1 and H1B grace periods), but may not work.   If the gap is longer than 40 days, students must seek other solutions because both the ability to legally stay in the US and to work in the US will likely be impacted.   Solutions should be discussed with future employers and/or their immigration attorneys.  

Strategies for Students

Students should apply for and use all of the Optional Practical Training (for F-1 students) or Academic Training (for J-1 students) for which they are eligible.  You must apply for authorization before completing the requirements for the degree program. 

Additional options to consider:

  • If a relevant BA/BS, MA/MS or PhD degree was earned previously (in the US or other country), utilize that earlier degree to prove qualification for H1B position, at employer’s discretion.  
  • H1B set asides for citizens of Chile or Singapore.   Discuss with your employer. 
  • TNs for Canadian and Mexican citizens in certain fields.    For more information:    (http://travel.state.gov/visa/temp/types/types_1274.html)
  • E3s for Australian citizens.   For more information:  http://www.studentaffairs.cmu.edu/oie/admins/forscho/other/e3.html
  • Previous H status?    If you were previously in H-1B status with a cap-subject employer, you likely were already been cap-counted.  This is a benefit to employees and employers alike.  Discuss with employer. 
  • Jobs with cap-exempt employers: 
    • an institution of higher education or a related or affiliated nonprofit entity;
    • a nonprofit research organization; or
    • a governmental research organization.
  • G visas with international organizations or A visas with your home government.
  • O-1 status for highly qualified graduate students  http://www.studentaffairs.cmu.edu/oie/admins/forscho/other/o1.html
  • P status as an athlete, artist or performer 
  • Spouse in the US?  You may be able to change to a dependent status which may or may not allow you to work (depending upon the dependent status) but will allow you to remain in the US with your spouse.
  • Further study?  Continue your education with a new degree or level of study.  F-1 students are eligible for a new 12 month period of OPT for each higher level of study.  F-1 students can only have one 12 month period of OPT per advanced level of study, however, so pursuing another degree at the same level will not qualify a student for additional OPT.

If you exhaust all options within the US, you may need to return home or search for jobs in other countries.  You do not have to physically be present in the US for an employer to petition for an H-1B for you; you may decide to work outside the US for a year or two and return when H-1B visas are available again.

Dealing with the Stress

As if you didn’t have enough to worry about!!!    This is one more issue that impacts our international students over and above “regular” student issues including grades, finances, the job search, etc.   We are very concerned about this issue as it impacts our graduating international students.   

OIE is committed to providing support and assistance to students.  Other offices on campus are equally committed; use campus resources as needed -- Career Center, Counseling and Psychological Services for stress management and counseling, and Student Health for stress or anxiety-related physical problems.  The remainder of this semester may be more stressful than usual because of this situation so make sure you take care of yourself—eat properly, sleep, get exercise, ask for help. 

Regards,
The Staff of OIE

Updated 1/22/2008