H-1B Frequently Asked Questions FY 2010

The new H-1B filing period for Fiscal Year 2010 begins on April 1, 2009.  That is just a few weeks away.  Here are a few questions that we have frequently been asked by clients.

Will an F-1 student be able to remain in the United States if his/her OPT status expires prior to October 1, 2009? 

On April, 8, 2008, the USCIS issued a regulation that extended the authorized stay for all F-1 students who have properly (timely) filed an H-1B petition and change of status request whose F-1 status will expire before October 1. The student is in valid status and can continue to work while the petition is pending at the USCIS. If the case is rejected, the student’s F-1 status will dictate the continued ability to remain in the U.S. If the case is accepted under the quota, the student will have an extension that enables the student to remain in the U.S. and continue to work until the requested start date indicated in the H-1B petition takes effect. Therefore it is important to make sure to select change of status in Section 3 of the I-129 form to get this protection. 

Can an H-1B Petition be approved if the U.S. Degree will not be conferred by March 31, 2009? 

The USCIS has approved H-1B petitions for foreign nationals who have earned degrees from U.S. institutions of higher education, where the foreign national has completed all requirements for the degree, and hence, has "earned" the degree, but the degree has not been conferred. You must submit evidence that the foreign national has completed all requirements for the degree from an official at the school who is qualified to provide that information (e.g. Dean, Registrar or Department head). Letters prepared by unauthorized employees at the school stating that the student has completed all requirements toward a degree, when in fact there are still examinations or papers to complete, will not work.  The USCIS will not approve an application if the applicant does not meet the degree requirement at the time of filing.