Student Considerations : How to Effectively Plan for FY2008 H1B Cap
Posted Oct 06, 2006
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As regular MurthyDotCom and MurthyBulletin readers know, the H1B cap has been reached for Fiscal Year (FY) 2007, which began on October 1, 2006. The new FY2008 cap race will begin on April 1, 2007 for an October 1, 2007 start date. Absent a change in the law, the cap for FY2008 will again be 65,000 for persons with U.S. bachelors' degrees or the equivalent, with an additional 20,000 available for individuals with advanced U.S. degrees. Given how quickly these caps were met this year, and the relative strength of the U.S. economy, the cap potentially could be met even earlier for FY2008. Many who are studying here in the United States are interested in obtaining their H1Bs after graduation. Students should be mindful of H1B cap timings when making certain decisions that affect their dates of graduation and related matters, to avoid gaps in status.
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Advanced Degree Thesis Must Be Completed
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All qualifications for a degree must be completed at the time of filing the H1B petition in order to qualify for the U.S. advanced-degree cap. Numerous inquiries have come to the Murthy Law Firm from individuals who missed the 65,000 cap for 2007 and wanted to pursue the advanced-degree cap. Many had not yet completed the thesis required to obtain their advanced degrees. Generally, because these individuals had not actually completed all degree requirements, they were ineligible to file the H1B under the advanced-degree cap. If their theses were not complete before the cap was met, they missed the quota altogether for an entire year. Therefore, while it is sometimes easier said than done, completion of the master's thesis must become a top priority for one who is relying on the advanced-degree cap to obtain H1B status, thereby avoiding a gap in status after the completion of the F-1 or J-1 Optional Practical Training (OPT).
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Complete the Thesis Earlier
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It is not clear how quickly the advanced-degree cap might be met, but the longer one waits to file after April 1, 2007, the more likely it is that the cap for the FY2008 quota will be met. A student may want to consider completing all degree requirements prior to April 1, 2007, therefore. S/He should also discuss the feasibility of this with the advisor, who should be informed of any immigration deadlines the student faces.
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Complete the Thesis Later
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If a student cannot complete the thesis before April 1, 2007, s/he should give thought to whether it might be possible to continue as a student, complete the thesis in the fall, and graduate in December rather than May. As with all cases, the student should be mindful of the requirement to file the OPT prior to completing the program. One should coordinate with the Designated School Official (DSO) to file for OPT at the proper time to be able to take advantage of the one-year OPT for F-1s and eighteen months of possible OPT for J-1s. An F-1 student graduating in December generally would have OPT for one year following graduation. With OPT covering an individual from December to December (or January to January), his or her employer could comfortably file the H1B on April 1st, with a start date of October 1st, and there would be no gap in status. Such students, in all likelihood, would cut their OPT short by two or three months, in order to change to H1B status. This is a small price to pay, however, in order to make the cap for that year.
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File under the 65,000 Cap
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Since completing a thesis can be stressful enough on its own without immigration considerations, if a student has a job offer that does not require the advanced degree, s/he should have the employer file through the regular H1B cap on April 1, 2007. This, of course, does not work if the position requires the advanced degree. The student may have to negotiate with the employer and, perhaps, take a position that does not require an advanced degree with the hope of completing the degree and gaining a promotion at a later time. This may impact one's ability to file later under EB2 for the green card, so it is important one have a good understanding of the future consequences of this decision.
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Now Is the Time to Start Planning!
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April is only six months away, and filing under the FY2008 H1B cap takes careful planning, particularly for students who must begin plans in November 2006 for their spring semesters. Waiting until March 2007 to decide what to do will be too late. Students must be mindful of the need to obtain employer cooperation and consent to file the H1B case, which may also take time. This is particularly true for those with employers who are unfamiliar with the H1B process and do not understand why they should expedite filing for a start date more than six months away.
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Educating an employer unfamiliar with H1B timeframes is critical to make the process go as smoothly as possible. At the Murthy Law Firm, we have seen how advance planning also can help employers and employees. We will be accepting cap-subject cases in January, so that many of these can be prepared ahead for filing in April. In this manner, the need to rush is averted and chances of meeting the H1B cap are increased for those who are able to plan in advance. It is a win-win for all concerned, and the best way to ensure H1B status.
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