One of the central purposes of the H-1B visa program is to attract foreign students to US colleges and universities by offering a post-graduate opportunity to stay in the country and work specialty occupations.  The H-1B visa is a visa of dual intent which allows beneficiaries the option to pursue pathways to citizenship if they so choose. Additionally, H-1B employees tend to earn higher wages, with $101,000 as the median annual income.

The Department of Homeland Security and Biden Administration are proposing changes to the H-1B visa program to provide more flexibility for F-1 individuals making the shift to H-1B.  Being the focus of new legislation is a mixed bag, however this does emphasize the importance of F-1 students to the vitality of the H-1B visa program, and in turn to the economic health and competitiveness of US industries.  For just one example, there are currently over 1.5 million job vacancies in computer occupations.  About 56,000 new H-1B petitions are for computer occupations annually.  That means there are nearly 30 times more computer job openings than there are H-1B beneficiaries eligible to fill them.

For F-1 students who want to make the shift to H-1B status following graduation, the first step is to plan ahead.  Apply for specialty occupation positions with employers who hire H-1B workers to be your sponsor.  If your position is subject to the annual H-1B cap, you will need to be ready to register for the H-1B lottery this coming March.  Some H-1B positions are not cap-subject, including jobs for nonprofits, institutions of higher education, and medical institutions.  It is essential to be aware of any deadlines.  When your petition is filed, it must be filed as a “Change of Status.”  If approved, the beneficiary can begin work on October 1, 2022, at the start of FY2023.

If the beneficiary’s F-1 status expires before their H-1B status begins, they may be eligible for a cap-gap extension.  This applies to beneficiaries with cap-subject H-1B occupations.  USCIS explains, “An F-1 student who is the beneficiary of a cap-subject H-1B petition and request for change of status that is filed on time may have their F-1 status and any current employment authorization extended until the first day of the new fiscal year.”  For this reason, it is essential to file on time.

Along with proposed changes to F-1 to H-1B, there are also proposed changes to H-1B cap-subject selection that would favor high earners, and further erode what qualifies as a specialty occupation. As evidenced by approval trends of previous years, and by these proposed changes, entry level positions are particularly vulnerable to RFEs and Denials.  This is because entry level workers make lower wage levels, and because USCIS does not always accept that these positions meet specialty occupation requirements – particularly positions that normally but do not ALWAYS require a US bachelor’s degree minimum.  Challenges with entry level positions are a particular problem for recent college and university graduates seeking to change from F1 to H-1B status.

At CCI, we have encountered specialty occupation RFEs, wage level issue RFEs, and the Double RFE which rolls these two issues into one complex RFE. We have found the most successful way to answer these RFEs is with an expert opinion letter written by an expert in the field of the H-1B job with at least ten years’ experience working directly in the field, as well as leadership experience wherein they made hiring decisions regarding the H-1B position and supporting positions reliant on the H-1B position.  This letter is based on evidence and documentation provided by the petitioner regarding the position in question, past hiring practices, and wage level factors and will lend weight to the validity of the case.  We work with the RIGHT experts in every H-1B field to make sure beneficiaries get the support needed for H-1B visa approval.

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Sheila Danzig

Sheila Danzig is the director of CCI  Sheila specializes in overturning RFEs and Denials for work visas.

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