New H1B after PhD

[TopDice]

Dear Experts,

I'm currently a PhD (Mathematics) student graduating in August this year (in two months!). I was on an H1B visa from Oct 2006 til Sept 2011 after using OPT from my masters from Feb 2006 til Oct 2006. In Aug 2011 I transferred to F1 to start my PhD.

I understand I'm eligible for a new OPT period of 1+2 years. Appreciate your feedback to my questions -

1. Since I have not used my entire 6 years of my old H1B, can I transfer back to it without going through the lottery? This would mean that I transfer to my old H1b after exhausting my new OPT (ie., for example, after 3 years) to use my unused one and half years (including my vacation time out of US). In this case, my future employer must file for a Green Card within 6 six months after I transfer back to my old H1b. Is that correct?

2. Am I eligible for a fresh H1B? Will it be lottery then?

3. Suppose I start working on OPT, can my future employer apply for a Green Card while I am on OPT?

Thanks very much for your time.

-S

[scientist2016]

1) You can claim cap exemption using your old H1. However, the time for that is limited, since it will be 6 yrs. come this September, from when you were in H1 status last, and hence cannot claim cap exemption after Sep 2017.
2)Yes you are eligible for H1, and it will be a lottery.
3) Yes applying for a green card can be done anytime, and you need not be even employed by that employer at the time of application (future employment).

[TopDice]

Thank you very much for your reply.

1) You can claim cap exemption using your old H1. However, the time for that is limited, since it will be 6 yrs. come this September, from when you were in H1 status last, and hence cannot claim cap exemption after Sep 2017.

If I transfer to H1 before September this year, I'd then forever forgo the 3 year OPT that I will be eligible as a PhD? Suppose I transfer to my old H1, I'll then have about 1.5 years remaining on that H1. In order to continue working in my new job, either I or my employer should then file for a green card within 6 months after I begin working on H1. Is that correct? I believe not many employees would be willing to that.

2)Yes you are eligible for H1, and it will be a lottery.

Assuming I use OPT for three and then apply for a new H1. Do I have to spend atleast a year outside the US to be eligible for a new H1?

3) Yes applying for a green card can be done anytime, and you need not be even employed by that employer at the time of application (future employment).

So I can apply for a green card myself without being employed...for example, even before I graduate with a PhD I can apply for a green card?

What is a good option then? Or is there another option?
1. Look for an employer who will apply for a transfer to my old H1 before Sept. this year and is willing to apply for a green card within 6 months.
2. Start working on OPT and after 3 years, apply for a new H1 through lottery (and possibly spend atleast an year out of country).
3. Self apply for a green card..maybe as NIW. (I have a few publications and prizes but nothing stellar).

Thanks again for your valuable advice. Helps me immensely in approaching a lawyer in a more focused manner.

[scientist2016]

Thank you very much for your reply.


If I transfer to H1 before September this year, I'd then forever forgo the 3 year OPT that I will be eligible as a PhD? Suppose I transfer to my old H1, I'll then have about 1.5 years remaining on that H1. In order to continue working in my new job, either I or my employer should then file for a green card within 6 months after I begin working on H1. Is that correct? I believe not many employees would be willing to that.

Yes you will forgo your OPT. You can start the GC process slightly later too (if done via EB1 or EB2 NIW and under premium processing), so the 6 months is not a hard stop.

Assuming I use OPT for three and then apply for a new H1. Do I have to spend atleast a year outside the US to be eligible for a new H1?

Yes

So I can apply for a green card myself without being employed...for example, even before I graduate with a PhD I can apply for a green card?

Technically you can, but chances of acceptance are slim if you do not have even a PhD.

What is a good option then? Or is there another option?
1. Look for an employer who will apply for a transfer to my old H1 before Sept. this year and is willing to apply for a green card within 6 months.
2. Start working on OPT and after 3 years, apply for a new H1 through lottery (and possibly spend atleast an year out of country).
3. Self apply for a green card..maybe as NIW. (I have a few publications and prizes but nothing stellar).

If I were you I would go with option 2, and pursue option 3 in parallel i.e., start working on OPT. Then that would stave off your GC clock for the time being. It also gives you 3 yrs either to gain more research credentials (to allow for EB1 or EB2-NIW filing) and/or find an employer willing to sponsor a GC. You need not be working for an employer for them to be able to file a GC for you. Remember GC is for future employment.

Thanks again for your valuable advice. Helps me immensely in approaching a lawyer in a more focused manner.

[TopDice]

If I were you I would go with option 2, and pursue option 3 in parallel i.e., start working on OPT. Then that would stave off your GC clock for the time being. It also gives you 3 yrs either to gain more research credentials (to allow for EB1 or EB2-NIW filing) and/or find an employer willing to sponsor a GC. You need not be working for an employer for them to be able to file a GC for you. Remember GC is for future employment.

Suppose I start on OPT and let's say after an year I self-apply for EB2-NIW. In this case, unless I get my EB2-NIW approved and I receive green card before my OPT period ends, I'll have to leave the US (similar to when my employer wants to apply for a fresh H1)? Wouldn't I be in a similar situation if my employer files for EB1? I guess the question is how likely would my EB1 or EB2-NIW application be approved (even under premium processing) before my OPT ends so that I can continue working without leaving the country.

On the other hand, if I go with option 1 (transfer to my old H1 with remaining 1.5 years left) and either have my employer do EB1 or self-apply EB2-NIW, there is better chance of having my H1 extended while continuing to work without leaving. Is that right?

Thanks for your insightful answers. Greatly appreciate your comments.

[scientist2016]

Nope there is no extension for H1 just because you filed EB1/EB2-NIW. Such an extension is possible only for labor certification (perm) based EB applications viz., EB2 & EB3. The reason being that since labor certification takes time from the dept. of labor side, etc., and cannot be predicted, you are given that chance to cover any eventualities. Since EB1 & EB2-NIW do not need that step, and since EB1 is always current (typically) there is no "extension" of H1.

For premium processing, you should get an answer in 2 weeks (provided there is no RFE; If you get an RFE, this 2 week clock stops and starts after you submit your reply), so you would not need 1 yr. Since EB1 is typically current for all countries (exceptions being India and China at the end of the yr ie., from June onwards, have been retrogressing for the past 2 yrs, but become current when the new quota is released in October), you can file I485 concurrently with your EB1, in which case you get an EAD, and can work until either you get your GC or your I140 or I485 is rejected. Hence my previous choice.

[TopDice]

Nope there is no extension for H1 just because you filed EB1/EB2-NIW. Such an extension is possible only for labor certification (perm) based EB applications viz., EB2 & EB3. The reason being that since labor certification takes time from the dept. of labor side, etc., and cannot be predicted, you are given that chance to cover any eventualities. Since EB1 & EB2-NIW do not need that step, and since EB1 is always current (typically) there is no "extension" of H1.

For premium processing, you should get an answer in 2 weeks (provided there is no RFE; If you get an RFE, this 2 week clock stops and starts after you submit your reply), so you would not need 1 yr. Since EB1 is typically current for all countries (exceptions being India and China at the end of the yr ie., from June onwards, have been retrogressing for the past 2 yrs, but become current when the new quota is released in October), you can file I485 concurrently with your EB1, in which case you get an EAD, and can work until either you get your GC or your I140 or I485 is rejected. Hence my previous choice.

Thanks. I'm an Indian citizen born in India. I guess I should expect certain delay. Still, looks like OPT + green card in parallel is a better option.

Option 1 seems to be conservative. Even if my employer files for EB2 (assuming they are willing to apply) and I decide not to file EB2-NIW, I should be able to continue working by extending H1 without leaving.

[inadmissible]

Thanks. I'm an Indian citizen born in India. I guess I should expect certain delay. Still, looks like OPT + green card in parallel is a better option.

Option 1 seems to be conservative. Even if my employer files for EB2 (assuming they are willing to apply) and I decide not to file EB2-NIW, I should be able to continue working by extending H1 without leaving.

An H visa sponsor always has the opportunity of terminating your employment

[scientist2016]

Thanks. I'm an Indian citizen born in India. I guess I should expect certain delay. Still, looks like OPT + green card in parallel is a better option.

Option 1 seems to be conservative. Even if my employer files for EB2 (assuming they are willing to apply) and I decide not to file EB2-NIW, I should be able to continue working by extending H1 without leaving.

In that case EB2-NIW is not effective; Yes it does give you a chance to file on your own, but you would have to wait a long time to get your GC. I would rather use the time and money to take my chance with EB1A, since the reward is so much higher compared to the risk (use your Math PhD ). And another option you should consider is EB1B. If you take up a posn. in academia, you could go the EB1B route, slightly easier than EB1A, but with all the same rewards. All the aforementioned discussion about H1 becomes moot, since a university/college can file H1 under cap exempt quota.

[TopDice]

In that case EB2-NIW is not effective; Yes it does give you a chance to file on your own, but you would have to wait a long time to get your GC. I would rather use the time and money to take my chance with EB1A, since the reward is so much higher compared to the risk (use your Math PhD ). And another option you should consider is EB1B. If you take up a posn. in academia, you could go the EB1B route, slightly easier than EB1A, but with all the same rewards. All the aforementioned discussion about H1 becomes moot, since a university/college can file H1 under cap exempt quota.

I'm beginning to understand now! Thanks very much. It seems my options are -

A. Suppose I take up a position in the industry/commercial non-academia. Then -

1. Transfer back to my old H1 and have my employer file for at least EB2 (or preferably EB1A) roughly within six months. This will allow me to extend my H1 and continue working without a need for one year out-of-country stay.
2. Start my OPT (thereby forgoing the remaining time on my old H1) and as soon as possible apply EB1A either through employer or by myself (assuming my research profile is strong enough at that point of time). If I get my EB1A approved before my OPT expires, then I can continue working.
If my employer applies for a new H1 and assuming I am selected in lottery, I'll have to spend atleast an year out of country to start the new H1. If I am not selected in the lottery, apply again the following year. If I keep getting ignored by lottery, then give up and leave US and use my math skills elsewhere..possibly in India

B. Suppose I take up a position in academia as a postdoc or faculty or I join a govt. research lab.
My options (1 & 2 above) are similar to option A, except that my new H1 will be cap exempt..so no lottery BUT I'll still have to spend a year out of US to start my new H1.

In summary, in order to continue working uninterruptedly (i.e., without a need for one year out of country stay), the most conservative option I have is A1 (or B1) - transfer back to my old H1 and have my employer file for at least EB2 (or preferably EB1A) roughly within six months. Is that correct?
The more aggressive option, which I can also pursue in parallel, is to apply EB1A as soon as possible whenever I am (or my immigration lawyer) confident enough to apply.

Thank you very much for your kind reply.

[TopDice]

I happened to come across something interesting from the Govt. policy...makes my case tricky (to me) -
"The regulations at 8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum period of admission, a new petition may be approved only if the alien has remained outside the United States for one year."

Let's say I start working on my OPT without exhausting my unused 1.5 years in my old H1, that is, without reaching the maximum period of admission. Recall that the last time I held H1 was in Sept. 2011. After Sept. 2017 (6 years since I last held H1), how can my employer file for a H1 for me? Since I'll be out of the 6 year window, it seems I won't be able to reclaim the unused period in old H1. But the above rule of staying outside the US seems to be applicable only when I reached the maximum period of admission, which I clearly did not. What option does my employer have here?

Thanks.

[scientist2016]

I would still opt for the OPT path, because:
(1) You will have a 3 yr. clock instead of the 6 month clock.
(2) You can do whatever you wanted to do within the 6 months on H1B, on OPT too i.e., being on OPT does not stop you from getting your employer to file in EB2, etc. You do not need to be on H1B to start your GC process be it EB1 or EB2.

However, the reviving the old H1 route has one advantage though, and that is ability to extend the H1 if your GC is filed in the EB2 category. You will not have this facility if you go the OPT route.

[scientist2016]

I happened to come across something interesting from the Govt. policy...makes my case tricky (to me) -
"The regulations at 8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum period of admission, a new petition may be approved only if the alien has remained outside the United States for one year."

Let's say I start working on my OPT without exhausting my unused 1.5 years in my old H1, that is, without reaching the maximum period of admission. Recall that the last time I held H1 was in Sept. 2011. After Sept. 2017 (6 years since I last held H1), how can my employer file for a H1 for me? Since I'll be out of the 6 year window, it seems I won't be able to reclaim the unused period in old H1. But the above rule of staying outside the US seems to be applicable only when I reached the maximum period of admission, which I clearly did not. What option does my employer have here?

Thanks.

Exactly, and hence if you want to revive your old H1 it should be before Sep 2017. After that you will have to go through the H1 lottery afresh, which means you have to be atleast an yr. out of the US prior to application viz., April 2018 H1 is out of question for you, since you will not have spent an yr out of the US by then.

[TopDice]

I would still opt for the OPT path, because:
(1) You will have a 3 yr. clock instead of the 6 month clock.
(2) You can do whatever you wanted to do within the 6 months on H1B, on OPT too i.e., being on OPT does not stop you from getting your employer to file in EB2, etc. You do not need to be on H1B to start your GC process be it EB1 or EB2.

However, the reviving the old H1 route has one advantage though, and that is ability to extend the H1 if your GC is filed in the EB2 category. You will not have this facility if you go the OPT route.

Yes, that's correct. It's a big advantage of reviving the old H1. Looks like I need to negotiate this when I find an employer..that is, have them file for atleast EB2 ASAP after I revive my old H1.

[TopDice]

Exactly, and hence if you want to revive your old H1 it should be before Sep 2017. After that you will have to go through the H1 lottery afresh, which means you have to be atleast an yr. out of the US prior to application viz., April 2018 H1 is out of question for you, since you will not have spent an yr out of the US by then.

I see unclear interpretation when it comes to reviving an old H1 within 6 years...for example, if you look at the 2nd to last faq at https://www.immihelp.com/h1b-visa-general-faq/. It seems one could reclaim unused period from old H1 regardless of when it was active the last. It seems natural that way since I was eligible for a full 6 years and the point being that I didn't use those full 6 years.
Another interpretation of this rule - http://forum. **** **.com/index.php?...re-than-6-yrs/

What's your take on the above interpretations? In light of those, it then seems that I can reclaim my unused H1 even after Sept. 2017 (after 6 yrs since I last held H1).

Thanks.