Saturday, May 03, 2008

H1B issues.. the jargons and the laws surrounding it

Let me start by stating that this entry is based on my perception of H1B laws and jargons. They might not be accurate (if so, do correct me). That being said, this entry is specifically for family and friends in India, who might not exactly understand my erratic/fluctuating travel plans or my "headless chicken" rant about immigration laws which is usually high on jargon. I know they are not alone in feeling helpless halfway across the globe.. there are atleast 32,000 people with higher US degrees who might be in similar situation (Based on the tentative figures released by USCIS).

Starting with basics, keep these acronyms/jargon in mind as you go through the rest of this post (I have tailored this entry to my specific case, so I won't be going into anything that doesn't concern me.. life is complicated enough as it is):
  • F1 Visa: Just ignore the word Visa, and think of the word status. Having F1 visa means, having student status.
  • H1B Visa: This visa means that my primary purpose of stay in the US is to work for a US based firm.
  • OPT: (Optional practical training) You can think of it as apprenticeship or some sort of a project work that you do after graduating from a US university. After graduation, a year of OPT period is allotted to every student when he can work in a US based firm. Even though the student has graduated, he is still in F1 visa (i.e. he is still considered a student). It is during this period that he can apply for a change of Visas ( from F1 to H1 => student status to working status).
  • POE: (Point of Entry). This comes into picture when you apply for a change of visas (F1 to H1). If you apply for H1 under POE, then you'll have to leave the US and get your Visa application stamped at the US Consulate in another country for the visa to come into effect(Mainly your home country.. i.e. India, else you have high chances of getting stranded in a different country :) ... seriously!!)
  • COS: (Change of Status). This means that you don't have to leave the country to get your Visa stamped for the visa to be effective.. you can get it stamped whenever you want (when you are in India).
  • 1 April-1 October: H1B applications are accepted from 1 April each year till the quota of 65,000 for regular candidates and 20,000 for candidates with higher US degrees is reached. Once the visa application is accepted, it becomes effective from October 1(I think).
With those out of the way, until the last year, things progressed in following fashion for an International student with higher US degree:
  1. Secures a job while he is still a student(under F1) atleast two months before graduation.
  2. His prospective company applies for H1B Visa in advance in April.
  3. He graduates in May (taking the generic/my case in consideration).
  4. He joins the company which had applied for his H1 and starts working on his OPT(still on F1.. remember)
  5. Visa gets approved and his Visa status changes smoothly from F1 to H1. Note that he still has a good 6-7 months of OPT remaining.. but since he is no longer in F1(i.e. not a student), those 6-7 months doesn't matter now.
Since I have been know to have a knack of getting myself in highly complicated situations, Here's what happened with me. ( Note that parts of this will be exactly the same for those who didn't make the H1B lottery last year).
  1. Got a job in mid April. H1B Visa Quota already full :(
  2. Graduated in May.
  3. Joined Mailshell in June'07 (on OPT, still F1 status)
  4. Mailshell applied for my H1B Visa in April 1'08, but OPT only valid till June'08. So essentially June'08-October'08 without a valid status in US. Of course, H1B visa was applied under POE since I had to leave the country. (I hope you remember all the jargon I explained earlier). There were 32,000 applicants for a quota of 20,000.
  5. Mailshell agrees to have me work remotely from India for 4 months. ( and I booked the tickets, planned out my stay etc etc.. )
  6. Near about April 3'08, new bill passed allowing for the OPT to be extended for another 17 months (a total of 29 months now provided that Mailshell registers for some e-verify program).
  7. Another ammendment stating that OPT for students(like me), who have gap between OPT expiration dates and H1B start dates, will be extended automatically to cover the gap(provided that they get their H1Bs), comes into effect... This applied to me since I got a reciept for my application(meaning that I made the lottery and had chances of getting a Visa approved).
  8. Remember my application was filed under POE... well if it is POE, the ammendment I mentioned above wouldn't make much sense since I would have to leave the country anyway to get visa stamped. (Folks, you see the conundrum here.. to cancel the fligh tickets or not to cancel.. aaah!!)
  9. Lawyer applied for an ammendment in my application to change it from POE to COS which means that I wont have to leave the country before October...(only now I wanted to).
Now no matter how advanced US may seem to the rest of the world, its not (no offence here).. there's still lot of beareucracy and paperwork involved (although much much less than India :) ), the dhs(who manage immigration at the borders) might not have access to the updated USCIS records, and they would need papers to prove that I have the right visa to get through.. in other words, person leaving the country might as well get a one way tickets.

After talking to my lawyer, and friends ( some of whom have access to huge law firms specializing in immigration) , I was convinced that leaving country at this point would be really risky. So there goes my plans for a India trip.. (I intend to take the first flight to India in October.. On the bright side, I will be celebrating my birthday with them after 8 years)

If you think that I got the short end of the stick (which I did).. think about my friend who had to postphone his marriage!

Hopefully I explained this well enough without assuming too much about the reader while remaining within acceptable limits of verbosity :).

PS: To all Indian readers of this enty: It would be great if you could translate this article to Indian languages of your choice (need atleast hindi and tamil).

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