Student Considerations : Undergraduates Should Plan Ahead
Posted Oct 20, 2006
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MurthyDotCom and MurthyBulletin readers were informed of the need for advanced-degree students to plan for the Fiscal Year (FY) 2008 H1B cap in our October 6, 2006 article, Student Considerations: How to Effectively Plan for the FY2008 H1B Cap. Undergraduate students should also plan ahead to increase their chances of obtaining H1B status after graduation.
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Complete All Graduation Criteria before Filing H1B
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As is the case for one filing under the advanced-degree cap, an undergraduate must have completed all aspects of the degree program successfully prior to filing the H1B petition. Potential May 2007 graduates should review their graduation requirements. Filings for the FY2008 cap begin on April 1, 2007. Thus, members of the Class of May 2007, who are not eligible for OPT for some reason, could possibly see the cap numbers depleted or exhausted before they can even have their cases filed. If a student will not complete conditions for graduation prior to April 1, 2007, s/he may wish to investigate the possibility of extending the program  of study into the fall semester. It is best to discuss options with one's academic advisor, as graduation rules and qualifications may vary by school and/or degree program.
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Prior Education and Experience Relevant for H1Bs
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A student may already have a bachelor's degree from abroad and/or relevant work experience for the job offered. Such a student may obtain a credentials evaluation from a reputable credentials evaluation company and determine if the education and/or experience is equivalent to a U.S. bachelor's degree. The USCIS regulations allow for three years of experience in a field to generally be considered equal to one year of baccalaureate education in that field. Therefore, if a person has three years of experience and three years of education, it is possible that a credentials evaluation company could find that the individual has the equivalent of a four-year degree in the field in which the position is being offered. This would permit H1B approval, but it does not protect one when filing later for permanent residency, when it generally is not possible to combine education and experience.
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Timely OPT Filing Required to Avoid "Gap" in Status
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Most students are eligible for one year of Optional Practical Training (OPT) at the completion of their programs. It is important to make sure that the OPT is filed in a timely fashion. Even if the H1B case is filed before the cap, the OPT is needed to bridge the time between graduation and the start of the H1B petition validity on October 1, 2007. Simply having the H1B case filed is not enough, if one's status is going to expire before the H1B start date.
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Alternatively, if a student is unable to obtain an H1B sponsor for FY2008, the OPT will permit her/him to work for a year after graduation. Thus, the May 2007 graduate might have OPT from May 2007 to May 2008, or, depending upon how long it takes for approval, it might run from June 2007 to June 2008, or August 2007 to August 2008. Since there is a 60-day grace period at the end of the OPT, a student with an August end date will be in a better position than one who has an earlier OPT end date. One with OPT ending August 2008 potentially could wait for the next fiscal year, and have the employer file an H1B for FY2009, rather than FY2008. An FY2009 case would have a start date of October 1, 2008. Thanks to the 60-day grace period at the end of the OPT, this individual would be able to work on OPT until its expiration in August and, thereafter, remain in the U.S. (without working) until the H1B start date of October 1st. One who has OPT ending in May, June, or July will not be so fortunate. Even with the 60-day grace period, s/he will have a gap between the OPT and the H1B start date. If such an individual is unable to find a way to bridge this gap, then it will be necessary to leave the U.S. during the gap, obtain the H1B visa at a U.S. consulate abroad, and return in H1B status after the start of the new fiscal year. Of course, it will also require an employer who is willing to employ a person in this situation, despite the break in his or her availability for work.