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Andrea, Umesh, Anyone Knowledgeable Please Respond

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  • Andrea, Umesh, Anyone Knowledgeable Please Respond

    How do you change status from F-1 to H-1B?

  • #2
    How do you change status from F-1 to H-1B?


    • #3
      To achieve H-1B status, you must first obtain an appropriate offer of temporary employment from an employer. Your employer must follow the following three-step procedure:

      1. Obtain the approval of a Labor Condition Application (LCA) from the regional office of the U.S. Department of Labor (DOL). The LCA is a document in which your employer attests that you will receive the same wages and working conditions as similarly situated U.S. workers, that there is no strike or lockout of such workers, and that other workers have been notified of the submission of the LCA to DOL.

      2. Obtain the approval of H-1B petition from the INS. The petition should describe your employer, the proposed employment, and your qualifications. It should be accompanied by the approved LCA and other appropriate documentation (e.g., a letter offering you employment, a copy of your diploma, a brochure and/or annual report regarding your employer).

      3. If you are maintaining legal nonimmigrant status in the U.S., your employer may request that the INS change your status to H-1B. However, if you exit the U.S. after obtaining H-1B status, you must obtain an H-1B visa abroad in order to return to the U.S. Only if you have violated or overstayed your nonimmigrant status must you exit the U.S. and apply for an H-1B visa at a U.S. Embassy or Consulate abroad.

      Your employment in support of an H-1B petition may be either full- time or part-time. You may receive authorization to work for two or more employers in H-1B status simultaneously.

      Prior to the Immigration Act of 1990, the number of H-1B workers entering the U.S. each year was not subject to any numerical limitation. The act set a cap of 65,000 H-1B workers annually. In 1998, the numerical cap was raised to 115,000, and in 2000, the cap was again increased, this time to 195,000. H-1B numbers are allocated starting on October 1st each year. Once the 195,000 cap is reached, no new petitions will be approved by INS until the next October 1st. For this reason, you should have your employer petition for you as early in the fiscal year as possible. Your spouse and unmarried, minor children may receive H-4 status. This allows them to reside in the U.S. for as long as you maintain H-1B status. Persons in H-4 status are not permitted to be employed in the U.S. However, if your spouse or children independently qualifies for a working visa, they may apply to INS for employment authorization.

      Initially, you may obtain H-1B status for up to three years. Prior to the expiration of the three-year period, you may apply to extend your stay for an additional three years. At the end of the six year period, no further extensions of H-1B status are permitted. Although you are allowed to change employers by submitting a new petition to INS (accompanied by a new LCA from DOL), this does not waive the six-year limitation.
      Extensions after six years are possible for certain persons who have experienced lengthy delays in the adjudication of their applications for labor certification or for employment-based visa petitions, or for H-1B holders who are unable to adjust their status in the U.S. because of per-country quotas. Should you wish to apply for permanent residence, you should begin this process as early as possible after you have located satisfactory employment.


      • #4
        You may obtain lawful permanent residence in several ways:

        1. By being petitioned by a close relative who is a U.S. citizen or permanent resident. Waiting times vary considerably according to the closeness of the relationship, the immigration status of your relative, your marital status and your country of birth. For example, if you are married to a U.S. citizen, you may obtain a green card in six months or less. However, if you are petitioned by your brother who is a U.S. citizen, it may take over ten years for you to obtain permanent residence, even longer if you were born in a country with a large backlog like Mexico or the Philippines.

        2. By being petitioned by a U.S. employer who can not find a U.S. worker with the education and experience to fill a particular job. Many foreign-students in the U.S. have no close relatives to petition for them, and must rely on employer sponsorship. The most common employment-based immigrant categories are discussed in more detail below.

        3. By being chosen for the annual immigrant visa lottery. Over seven million persons, in and out of the U.S., applied for 50,000 visas this year. Your odds are not good, but there is no harm in trying.

        4. If you qualify, you may apply for permanent residence as an investor, as a person of extraordinary ability, as an outstanding professor or researcher, as a multinational executive or manager, as a religious worker, or as a person of exceptional ability or an advanced-degree holder if this would be in the national interest of the U.S.

        5. In you are in removal, deportation, or exclusion proceedings, you may also apply for permanent residence through suspension of deportation or cancellation of removal.

        U.S. immigration law is consciously designed to serve the interests of both employers and workers. There are many avenues through which employers can petition for foreign-born employees. Our immigration laws protect U.S. workers by restricting employment- based immigration to persons whose skills and expertise are otherwise unavailable in the domestic workforce. In a variety of cases, it is possible for highly-skilled individuals to immigrate without the necessity of having their employers test the labor market. A person seeking to permanently enter the U.S. workforce through employer sponsorship is not admissible unless the Department of Labor certifies that he or she will not displace nor adversely affect the wages and working conditions of U.S. workers who are similarly employed. The employer must file an application with DOL establishing that both of these criteria have been met.

        The application form: The application (DOL form ETA-750) consists of two parts: Part A which describes the job offered, the minimum job requirements, and the salary, and Part B which describes your experience and education.

        The labor certification application is filed with a state employment security agency (SESA) which reviews the application for completeness, dates it, and assesses whether the wage being offered and the designated requirements are appropriate. Based on this review, the state office instructs your employer how to go about recruiting U.S. workers.

        Recruitment: There are three basic components to recruitment. First, the employer must place a job order with the SESA for at least 30 days. Second, the employer must post a notice at the worksite for at least 10 consecutive business days, notifying existing employees of the job opportunity. Third, the employer must advertise in a medium that will publicize the offer of employment -- three days in a local newspaper of general circulation or once in an issue of a journal that reaches persons seeking job opportunities in a particular occupation or profession. It is the government, not the employer, which designates the appropriate publication. Employers must notify bargaining representatives (or, if there is no bargaining representative, the workforce at large, through a conspicuous posting) of its intent to apply for a labor certification.

        The administrative machinery: The SESA forwards the labor certification application to a certifying officer in the regional office of DOL. The certifying officer may approve the application, request more information, or issue a Notice of Findings that flags defects in the application and provides the employer with a 35 day grace period to cure.

        If the application is approved, the position is certified and the certification valid as long as the job is available. Once the labor certification is approved, your employer should immediately submit a visa petition to the INS on your behalf. This petition should document that your employer has the ability to pay you the prevailing wage and that you have the education and skills necessary to perform the employment. Only after INS approves such a petition may you apply for permanent residence.

        Most of the foreign-born students who are sponsored by their employers for permanent residence in the U.S. must undergo the labor certification process. However, the law provides that a select minority of applicants for permanent residence may bypass DOL, and may commence their application by directly petitioning the INS. Although a wide variety of occupations, from million-dollar investors to religious workers, are exempt from labor certification, only those categories most used by recent college graduates are discussed below.

        Shortage occupations

        Labor Department regulations designate certain occupations which are determined to be chronically short of workers and exempts employers of such workers from the labor certification process. Presently, the regulations list only two occupations: registered nurses and physical therapists.

        Priority Workers

        The Immigration Act of 1990 rewrote much of the employment-based immigration provisions contained in prior law. It created a new classification scheme for employment-based immigrants and exempted many of them from the labor certification process. The largest category of persons exempted from labor certification are called priority workers.

        Priority workers consist of the following three subcategories: (1) aliens of extraordinary ability, (2) outstanding professors and researchers, and (3) certain multinational executives and managers.

        By definition, an extraordinary ability worker is one who belongs to that "small percentage" that have "risen to the very top of the field of endeavor." Should you qualify for this category, the law does not require that you be sponsored by a particular employer. However, the documentation requirements for inclusion in this category are demanding. Your extraordinary ability must be in one of the following fields: the arts, sciences, athletics, business or education.

        The second subcategory, outstanding professors and researchers, requires that you be internationally recognized as outstanding in your specific academic area and that you meet certain other requirements (such as three years teaching or researching experience in the field and a tenure or tenure-track position).

        The third subcategory, for multinational executives and managers, is little used by foreign students since it requires you to be employed abroad as an executive or manager for at least one of the past three years.

        National Interest Waivers

        Another exception to the labor certification requires that you possess either an advanced degree or are of exceptional ability in the arts, sciences or business, and that your immigration to the U.S. would be in the national interest. The INS has set forth the following seven factors which may be considered in defining national interest: Would your employment (1) improve the U.S. economy, (2) improve the wages and working conditions of U.S. workers, (3) improve education and training programs for U.S. children and under-qualified workers, (4) improve health care, (5) provide more affordable housing for young and/or older poorer U.S. residents, (6) improve the environment and make more productive use of natural resources, or (7) did you come to the U.S. at the request of a U.S. Government agency?
        However, in August 1998, INS issued a precedent decision making it very difficult to receive a national interest waiver.

        Once INS has approved your employer's petition, you are granted a "priority date" which is your place in line for a green card. Since the number of green cards which are issued are numerically limited by country and by category, waiting lines sometimes develop. Luckily for you, the waiting lines for most college graduates are either short or nonexistent. Most persons qualifying for permanent residence through employment may apply for green cards without leaving the U.S. You must demonstrate to the INS that you qualify for adjustment of status and that you do not fall within any of the "excludable" categories. For example, persons convicted of serious crimes, terrorists, and those who test HIV-positive seldom qualify for green cards.

        Your spouse and children may obtain green cards at the same time as you do. Many INS districts now waive personal interviews. You may be able to qualify for a green card in one to two years if you are exempt from the labor certification requirement. If labor certification is required, expect to wait at least three to four years to become a permanent resident.


        • #5
          Sorry for being late in responding to this thread. However others have done quite a good job at this, so I guess there's nothing that I can cut/paste here...


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