USCIS Leans over Backwards to Facilitate the H-1B Program

By David North on May 1, 2012

Supposing an alien who has studied in the United States wants to get an H-1B visa, to which he is potentially entitled, but stumbles in the process. Maybe he got started late or maybe he could not find an employer willing to file an H-1B petition for him.

Will USCIS just shrug, and let the market and the law take their normal course? You know, somebody else (maybe a citizen or green card holder) will get the job and the alien will have to return to his homeland, at least for a bit.

Heavens, no!

Over the years the agency has created a whole series of band-aids, splints, and crutches to help the disorganized or under-talented or just unlucky alien cover the gap between getting a BS or MS degree here and then getting an H-1B assignment. These same systems also are quite helpful to the not-very-well-organized U.S. firm that may be trying to hire the same alien, so USCIS is not just pouring agape (heavenly love) on the alien, the employer gets some, too.

Admittedly the whole array of visa and petition arrangements is not very easy to understand, if not totally inscrutable. There are deadlines, ceilings and non-ceilings, "cap gaps" and the academic calendar, and employers' whims to cope with, among other things. But if you are going to work at a high-tech job, shouldn't you know how to manipulate such systems? Apparently that's a thought that the agency has not yet had.

That outburst follows my reading a recent USCIS document with the catchy title "Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations: Questions and Answers".

Once upon a time there used to be visas for foreign students, who would come to the United States, complete their studies, and go home. There were also visas for temporary jobs, where workers would come to the United States, do the job, and then go home. And then there were green cards for people with real skills who lived overseas and who wanted to come to the United States to practice those skills and stay here. Each visa was separate and distinct, each with a finite task to perform, and each totally comprehensible.

But USCIS is conscious of, and highly supportive of, a blend of these processes in which a student comes to the United States and then seeks (without leaving America) to move from college to a temporary job to a longer-term temporary job (as an H-1B), and finally to a better job with a green card attached, and maybe from there to citizenship, too. In order to make that sequence work, USCIS has created a series of Rube Goldberg arrangements. Sometimes Congress has been called upon to help.

Here are the "problems" as seen by USCIS, in more or less chronological order, and the USCIS solutions:

A new graduate wants to work in United States without either an H-1B petition or a green card: The alien, with a new U.S. college degree, can get a 12-month work permit in the Post-Completion Optional Practical Training (OPT) Program while waiting for the H-1B situation to mature. During this time the new graduate will be treated as though he were still an F-1 student and his employer will not have to cover payroll taxes.

What if 12 months as an OPT is not long enough? The new graduate, if he studied in one of the STEM (science, technology, engineering, and math) fields can get another 17 months in extended OPT status, and thus still be treated as an F-1 and be able to continue to work legally while waiting for the H-1B.

What if 12 months plus 17 months is not enough? There is always the 60-day grace period at the end of the nominal F-1 status when that status is still half alive. At the mid-point of the grace period the F-1 student, in this scenario, has NOT been a student for two and a half years, but is still here legally in "student" status.

What if 29 months plus a 60-day grace period is still not enough? If an H-1B petition was filed during the 31 months and was still pending, the F-1 period would be extended until such time as a favorable H-1B decision had been made, in which case the alien could stay in the United States for at least three more years, or until such time as a negative decision had been made, which would, finally, cause the alien's departure.

This last extension of the F-1 status was created by USCIS and is called the "cap gap". That is a reference to the cap, or ceiling, on most H-1B applications that sometimes thwarts would-be H-1Bs.

One wonders if Guinness Book of World Records has a category for the longest interval between a U.S. university degree and the conclusion of the cap gap period.

Finally, what if the graduate, now a full-fledged alien worker, has an H-1B job and an approved green card petition, but does not have a visa number for permanent resident status? He can stay, legally, in H-1B status until a visa number arrives. This is the status of some long-term H-1B workers from India and China and it relates to the often-oversubscribed county-of-origin ceilings, another aspect of our endlessly complicated U.S. immigration law.