The Software Engineer: "How It Works"
This discussion will follow a fairly typical Software Engineer on her journey through the U.S. immigration system from the time she first seeks to enter the U.S. through to U.S. permanent residence (a "green card").
The Software Engineer had graduated from a Bachelor's degree program in her home country of India about five years ago with a degree in computer science. She then worked for two years as a systems administrator, where her scripting skills impressed her employers. This led the employer to move her to a software development position where she performed actual programming for a year. She decided during this year that she truly enjoyed this type of work and that she would pursue a Master's degree in Computer Science to further her career. The Software Engineer applies to a Master's program at a U.S. University and is accepted.
The U.S. University, upon receiving the Software Engineer's acceptance of their offer to attend, issues to her an I-20 form. She submits this as part of her application for a nonimmigrant visa stamp at the consulate abroad, along with a completed DS-156 form, her home-country passport, two passport-style photographs, evidence of financial support while in the U.S., the required visa processing and reciprocity fee, and any other evidence specifically requested by this consular post as discussed on the post's web site. The consulate approves her application, and places an F-1 Student Visa stamp in her passport.
The Software Engineer then travels to the U.S. to begin her studies. She is admitted to the U.S. and given an I-94 card noted "D/S" by the admitting officer. "D/S" stands for Duration of Status. F-1 and J-1 visas are valid for the duration of the educational or exchange program respectively, and thus the I-94 refers to the program and the program documents (I-94 or DS-2019) by saying "D/S" to determine the length of valid status instead of stating a finite expiration date.
During the second year of her program, the Software Engineer secures a one-semester internship with a major software company for which she will receive academic credit. With an endorsement from the University's Foreign Student Officer on the back of her I-20 form, she is allowed to work up to 20 hours a week. This type of authorization for employment is called "Curricular Practical Training," and requires nothing more than this endorsement.
The software company is impressed with the Software Engineer, and offers her a full-time job upon graduation. As an F-1 student she may work for up to one full year on "Optional Practical Training" or "OPT" since she has not used 12 months or more of full-time curricular practical training (a period of twelve months or more is deducted from the 12 months of OPT). To be able to work on OPT after completion of the academic program, she needs to apply for an Employment Authorization Document or "EAD" from Citizenship and Immigration Services before the end of the program. If she were seeking to use OPT during the program (like CPT, at least a year of the academic program must be completed before the student is eligible), she must apply 90 days before the intended start date. The Software Engineer's application
for OPT is approved with a start date of June 15, and an expiration date of June 14 of the following year.
The software company continues to be happy with the Software Engineer's work, and since it knows that she may only work on OPT for one year it seeks to change her status to H-1B. Even though only six months of the 12-month OPT period have been completed, the company submits the H-1B application early because it is aware of the looming threat of the H-1B cap. Unfortunately, the cap is reached before the company's petition for the Software Engineer is adjudicated by Citizenship and Immigration Services. The company sends correspondence to USCIS in response to an inquiry indicating that they will accept October 1, the beginning of the next fiscal year, as a start date.
The Software Engineer is still legally present in the U.S. and can legally work on Optional Practical Training, but is concerned about what will happen when her OPT expires on June 14. She knows that in the past CIS has issued guidance that those in her situation may stay in the U.S. until October 1 without violating status but can not work in the interim. On the other hand, she also knows that CIS has waited longer and longer before releasing such guidance and has had a more negative view of doing so in recent years. The Software Engineer and her manager consult with the company's immigration lawyer to see if there are ways to keep her in the U.S. and working between June 14 and October 1.
After reviewing the unique background of the individual, the unique situation of the company and the job offered with the lawyer, they rule out several possibilities. They examine whether they can apply for the H-1B before the Software Engineer's OPT expires but ask for a start date on October 1, when the new federal fiscal year begins. This particular option would not allow employment between the end of the OPT period and he October 1 start date, but in years past would protect legal status so that the Software Engineer would not need to leave in the U.S. in the interim. This protection of status would only apply if CIS comes out with guidance allowing F-1 students on OPT who have filed for H-1Bs but are "Caught in the H-1B cap" until October 1 to remain in the U.S.
They decide on a course of action which would protect the Software Engineer's status while allowing some of the work to continue: the Software Engineer arranges to re-enroll in her school to pursue coursework which is strongly related to the work she intends to perform for the software company, and the school approves a program of curricular practical training where she can work with the software company on projects directly related to this coursework for up to 20 hours per week. After this option is in place, the application for an H-1B visa against the following fiscal year's H-1B cap is filed.
The H-1B petition is approved with a change of status from F-1 to H-1B and an October 1 start date, and on October 1 the Software Engineer begins officially working for the company on the H-1B. She did not need to leave the U.S., get a passport stamp for the H-1B and return since the H-1B was granted with a "change of status" here in the U.S. The H-1B was granted for a three-year period, and will be extendable for another three years.
Since the Software Engineer has been working for the company for over a year, she has accrued significant vacation time that she has not yet used. She decides to travel home in December to visit family. Because she changes status within the U.S., during this trip she will
need to apply at the U.S. consulate in or nearest to her home city for an H-1B passport stamp with which to reenter the U.S. She applies at the consulate, is approved, and receives her passport back with a Machine-Readable Visa ("MRV") stamp.
Also during this visit home, the Software Engineer meets a man living and working in India as an Aeronautical Engineer and becomes romantically involved. They continue to correspond after she returns to the U.S., and several months later she returns to India to visit him. Once again they continue to correspond after her return to the U.S., and decide to become engaged soon after. She returns once again for an engagement ceremony.
At around this same time, the software company decides to begin the process of sponsoring the Software Engineer for U.S. permanent residence. The company begins running advertisements to demonstrate the necessary recruitment efforts for a labor certification application under the PERM process. The software company then completes the necessary recruitment steps of the application. The PERM application is filed in May, and in July the Software Engineer returns to India for her wedding.
Immediately after the wedding, the Aeronautical Engineer applies and is approved for an H-4 visa at the U.S. consulate so that he can accompany his new wife to the U.S. quickly, without waiting for USCIS Service Center approval of some other visa. He enters the U.S. with the Software Engineer on his H-4 visa, knowing that he will not be able to work on the H-4. rather, he will need to obtain an H-1B or some other visa which permits work once he obtains an offer of employment in the U.S. The newlywed couple have no problem entering on their H visas even though the Software Engineer's employer has begun the permanent residence process, since the H visa permits "dual intent" - the intent to enter for a limited time for now, while also eventually intending to remain in the U.S. as a permanent resident.
The labor certification is approved soon after, and in October the software company files an I-140 Immigrant Visa Petition for the Software Engineer. Since immigrant visa numbers happen to be currently available for 2nd preference applicants from India at the particular time when the filing is to occur, the I-485 Applications to Adjust Status to Permanent Residence of the Software Engineer and her husband can be filed along with the I-140.
Both the Software Engineer and her husband are entitled to file for separate travel authorizations known as "Advance Parole" and Employment Authorization Documents along with the I-485 applications based on nothing more than having this I-485 application on file. Since they both have significant time remaining on their H visas, and since individuals with valid H and L visas may travel on those visas without abandoning the pending I-485 Adjustment applications, they do not apply for Advance Parole. However they do both apply for EADs which are approved about 90 days later. The Aeronautical Engineer, who has had some difficulty in locating a job in his field with a U.S. employer willing to sponsor him for an H-1B, finds a job and is able to begin work immediately on the EAD without waiting for approval of an application to change status to H-1B from H-4.
The following July, a financial scandal suddenly envelops the software company resulting in massive layoffs. The Software Engineer's division is eliminated and she is terminated. The employer offers the Software Engineer a one-way plane ticket back to her home country, as required under the terms of the H-1B visa. The Software Engineer declines the offer.
Because the I-485 Adjustment applications are pending, the Software Engineer and her husband are not immediately considered out of status. Moreover, the permanent residence case is not necessarily dead if the Software Engineer can locate a new position which has similar parameters to her former position (similar job description, similar working conditions including wage, etc.). This is true because the I-485 Adjustment case has been pending for more than 180 days at this point. She locates such a position and her I-485 Adjustment case and that of her husband are approved several months later.
Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.