Sunday, January 29, 2023

H-1B visa status will remain even in case of job loss and having to leave the US

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Over the past few years there has been a big rise in the number of Indian students opting for the US as a campus destination for higher education. The US mission in India has recently announced that a record 82,000 student visas have been issued in 2022 and Indians have received more US student visas than any other country. Even as the number of Indian students going to campuses in the US goes up, the number on optional practical training status, too, has seen a sharp rise over the past few years. For Indian students, OPT is an option to work in the US after their studies. According to the Open Doors survey in November 2020, which tracks international student numbers, there were 81,173 Indian students enrolled for the OPT programme in the US.
But now as there are thousands of job losses across the US; Indian students who have started working in the US in their OPT period, or got H-1B work permits from employers after they finished their OPT, too are facing problems. OPT is temporary employment directly related to the applicant’s major area of study. Students on F-1 visas who finish their courses in the US, do not need a job offer to apply for OPT. The applicant may work for more than one employer or job, but all employment must be related to the degree programme that they have studied. Employment must be for a minimum of 20 hours per week.
Emily Neumann, managing partner at law firm Reddy & Neumann, one of Houston’s largest immigration law firms focussed exclusively on US employment-based immigration, has some good news for Indians who have graduated from US universities and may have recently faced a job loss. In most cases, a job loss does not mean that the US immigration journey must come to an end, she says. “Even if someone may have to relocate outside of the US due to the job loss, it often is a temporary situation,” she told Times of India. In fact, many who recently converted from F-1 to H-1B will not be have go through the H-1B lottery again even if they ultimately must leave the country, she says. “A new employer can file a new H-1B petition that is not “subject to the cap” and obtain the approval for consular processing to recapture any time left towards the six-year limit for the H-1B visa. If the individual already has a valid visa stamp from the prior employer, he or she can use it to return to the US to work for the new employer upon approval of this new petition,” she said. This can help in taking at least some of the stress out of the situation.
Notably, H-1B visa petitions are subject to a cap and must be filed in the first five days of April to compete for the 65,000 available slots. Once the United States Citizenship and Immigration Services (USCIS) fills the 65,000 cap-subject slots, another 20,000 visa petitions are selected in a lottery designated for the graduates of US universities with master’s degrees or higher.
For Indian students who are on OPT but are anxious about the current job situation; Neumann feels that they should think out of the box before planning to leave the US. “There are multiple types of employment allowed during the initial 12-month OPT period, if the work is related to the student’s field of study. “A student on F-1 visa may be more easily able to obtain part-time employment or unpaid training. Short-term gigs, contract work, and even self-employment are also allowed,” she says. Students sometimes start their own business in their field or work part-time for a professor during OPT time. However, Neumann has a word of caution about the employment rules for those on the OPT STEM [science, technology, engineering & maths] extension period, which is allowed for up to 24 months extra. This employment must be paid for, the employment must use E-Verify, a training plan must be completed, and the employer must provide supervision during this time. “Students should also be cautious of unscrupulous employers who provide an offer letter but no actual work,” she says.
Yet another option for students is to consider additional studies. F-1 visa holders are granted “duration of status” which allows them to stay in the US as long as the student’s Form I-20 is accurate and unexpired. This makes it easier for students to change programmes or schools and could give a student experiencing job loss during the OPT period the ability to return to school for further studies. Students should, however, choose the school and programme carefully and be wary of schools with minimal entrance requirements which offer immediate employment through curricular practical training, warns Neumann.
There is also the issue of long delays in the processing of H-1B visas in India at the US Embassy and consulates. Students on OPT, who have not requested for a change of status to H-1B, can continue to remain in the US while waiting for a visa slot as long as the OPT has not expired and they are complying with the terms and conditions of the student visa. They may also remain in the US pursuant to their current status while waiting for a visa appointment. Students could consider forgoing the visa process by asking their employer to file a change of status.
Even though wait times for appointments are improving, it can still take two to four months at consulates in India. Those in the US in another status, including student visas, at the time the H-1B petition is filed; are often eligible for a change of status so that it is not necessary for them to obtain a new visa at a consulate unless they intend to travel.
For those who have not held H-1B status or an H-1B visa in the past, a for-profit employer must go through the lottery process. However, if the employer is an institution of higher education (or related non-profit entity), a non-profit research organisation, or government research organisation, the employer may be cap-exempt, meaning that they do not need to file during the lottery and can sponsor a worker for the H-1B category at any time during the year. Those considering working for a cap-exempt employer to avoid the H-1B lottery process should be aware that if they wish to change employers to a for-profit organisation in the future, they will need to go through the lottery. “However, it is possible to work for both a cap-exempt and a cap-subject employer at the same time without going through the lottery through a petition for concurrent employment,” Neumann said.

Quearn – Do QnA

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