Exploring H-1B Visas

In our latest online chat, immigration law attorney David Ware answered questions about the complicated and controversial H-1B visa process

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With the Apr. 1 deadline for coveted H-1B visas looming, many international graduates of U.S. business schools who are looking to work in the U.S. have questions and concerns, especially since there is a shortage of these visas (BusinessWeek.com, 5/14/07). Business school applicants and students also have their share of questions about living and working legally in the U.S.

Recently, David Ware (DavidWare), a lawyer specializing in immigration and nationality law, fielded questions from an audience of business school applicants, students, graduates, and BusinessWeek.com reporter Francesca Di Meglio (FrancescaBW) in a live chat. Here is the edited transcript of the event:

FrancescaBW: Our first question today comes from someone who was unable to join us for the chat. Here it is: "I am an H-1B visa holder (3.5 years used up—no green card). I am planning to go to the UK for my MBA in the fall of 2008. After my MBA, will I be eligible for a totally new six years of H-1B in case I try to come back to the U.S. (because I left the U.S. for more than one year and my employment was terminated by my company) or will I have only two years of eligibility left (in which I will not be subject to the quota)?"

DavidWare: You can choose to either take a new six years and be subject to the quota or the remainder of your old six years, and not be subject, assuming you are out of the U.S. at least one year.

FrancescaBW: Here's another question from someone who could not join us: "I have one year (out of six) left on my H-1B and have my EAD (Employment Authorization Document)/AP (Advance Parole) through my employer. Since the green card priority dates seem to be a distant dream, and I am planning to go to grad school next year, I am wondering if I should work on EAD and abandon the H-1. The reason is I am skeptical is that if I finish my six years of H-1, I will not have any H-1 time after grad school, and it will be worthless to spend all the time and effort in grad school if I can't work after that. Please let me know if this is the track I should follow. Also, what is the procedure for me to start working on EAD?"

DavidWare: You certainly could do that, but one year of H-1B may not be much help to you after grad school, since you have to begin PR (petition) before the end of the fifth year, unless the employer's petition for you is already approved or will be approved and the company does not revoke that petition. In that case, you can use the old LC filing date, which will be more than 365 days old by the time you finish grad school, to continue extending your H-1B beyond the sixth year.

One wrinkle—if your employer moves to revoke the petition because you go to school and stop working for him or for any other reason, then your EAD will be canceled automatically. It would be safer to change status from H back to F, but that may not be allowed because of your AoS (Adjustment of Status) application, and also if it were [dependent upon] your work opportunities as an F, [you] would be more limited than with an EAD. There is no procedure to begin working on the EAD; you simply do not renew the H.

FrancescaBW: Here's another one from someone who couldn't be here: "Is there any way an accounting major with a 'green card' from Canada (or legal resident status) could work in the U.S.?"

DavidWare: Assuming the person has a four-year degree, he can obtain an H-1B visa. Depending on nationality or other circumstances, there may be other visa alternatives. I'd need to know more facts. Also, three years of professional-level experience can substitute for missing years of academic training, if the degree is less than four years (as is the case sometimes in India and Pakistan). Just having a green card in Canada does not permit one to enjoy different or special visa statuses.