Most foreign students graduating from a U.S. University this Spring will want the opportunity to stay in the U.S. and put their new knowledge and skills to the test by working for a U.S. employer. For students with an employment offer, their future employers can sponsor them for an H-1B if the employment is in a specialty occupation and if obtaining the requisite degree will qualify the student to work for the employer.
One of the many challenges that can arise with the H-1B process is with timing, of course. As we've explained above, there is an annual cap of 65,000 new H-1B visas, plus an additional 20,000 available for those who obtained a Master's degree or higher, from a U.S university. Every year for the past several years, there has been much more demand than 85,000. Therefore, the USCIS conducts a lottery for the H-1B's allocated for the upcoming fiscal year. The earliest that an employer can enter the H-1B lottery is April 1st. This means that employers who want to get one of these 85,000 new H-1B's for a new worker must apply at the very beginning of April, and only those H-1B petitions received the first five business days starting April 1st will be counted in the lottery.
One of the many timing challenges that can arise is when the foreign student will not have their final University degree conferred by the time the H-1B application must be submitted on April 1st. All H-1B petitions must be "approvable when filed". This means that the potential employee - the foreign student - must have been eligible for H-1B status at the time the H-1B application is submitted on April 1st, and NOT October 1st when the foreign student would actually be able to start working in H-1B status. To qualify for an H-1B visa, the proposed employment must be in a "specialty occupation". A "specialty occupation" is one that requires the theoretical and practical application of a highly specialized body of knowledge, for which attainment of a U.S. bachelor's degree or higher is a minimum requirement for entry into the occupation. So if the potential employee has not yet attained their University bachelor's degree at the time the H-1B petition is filed, then the H-1B petition runs the risk of being denied for not being "approvable when filed".
However, a common scenario is when the foreign student has actually completed all their degree requirements before April 1st, but their University does not actually issue the degree until the end of the Spring term. In that situation, evidence can be submitted to establish that the foreign student has completed all degree requirements. This could be in the form of a letter from an official at the University who is qualified to provide the information - such as the Registrar, or Department Head. Providing the documentation to show that degree requirements have been completed also applies with establishing that a foreign student has obtained a U.S. Master's degree or higher, in order to be counted in the Master's cap. However, be aware that even when submitting this documentation, the USCIS may still question whether the foreign student was eligible on April 1st.
The Gee Law Firm, based in Silicon Valley, handles H-1B petitions every year. Please contact this office for handling this year's H-1B cap petitions.