H-1B

Every summer, a lot of college graduates enter into the job market. Given the state of the economy, many of the graduates are having a hard time to find a job. This is particularly true for international graduates.

In most situations, prior to their graduation, international students usually apply for work authorization under the optional practical training (OPT) program and then seek employment with their OPT. However, an OPT authorization is only valid for 12 months (and an additional 17 months for students who have graduated from science, technology, and math majors). As a result, many employers are not willing to consider international students because they are not willing to hire someone who may have to leave the job in 12 months or simply do not want to pay the immigration fees to sponsor an international student.

To make things worse, a student under OPT cannot accrue more than 90 days of unemployment. Therefore, unless an international student can find some kind of work within 3 months of the start date of his/her OPT, the student may risk falling out of status. Thus, many international students would have to take low-skill and/or low-salary jobs during their OPT while they seek long-term employment.

For those who are lucky enough to find an employer who is willing to hire and sponsor their work visa petition (usually H-1B visa for college graduates), there is still no guarantee that they will be able to stay in the U.S. and continue to work after their OPT authorization expires. Prior to 2009, H-1B visa applicants usually had to file their petition on the very first day USCIS start accepting petition (usually April 1) because Congress has set a quota for the number of H-1B visas that can be issued in every fiscal year. If an applicant failed to do so, his/her application might not even be considered if USCIS had received sufficient petitions to meet the annual quota. Since 2009, fewer petitions have been filed because 1) fewer employment opportunities are available; 2) fewer employers have the resources to sponsor international graduates; and 3) companies that have received TARP money from the government may not sponsor H-1B petitions.

Although there are fewer petitions, that does not mean approval is automatic. In order to improve the chance of approval, an H-1B applicant should do the following:

A) an applicant should ensure the proposed employment requires a professional to fill it, such as someone with a college degree. If in doubt, it would be wise to check case law and BIA precedents to see whether there are any cases that can support the proposed employment to be qualified for H-1B.

B) An applicant should show a strong connection between the applicant's college education and the proposed job duties. If an applicant is qualified to perform the job duties without his/her college education, then USCIS will likely reject the application. On the other hand, if the applicant's professional qualifications have nothing to do with the applicant's job duties, it is also difficult to get an H-1B visa approved. For example, if a student majored in chemical engineering but his proposed job duties are linguistic in nature, it may be difficult to get an approval by USCIS.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.