Frequently Asked Questions by Employers of International Students

Q. Are recent graduates eligible to immediately begin working with my firm?

A. Once the graduate receives his Employment Authorization Document (EAD card) from the USCIS, he can commence employment.  The required form I-765 to apply for the EAD card is usually filed by the student prior to graduation and does not require a sponsoring employer or an actual job offer. This document is necessary for the I-9 employment verification process.

Q. When should we file our H-1B petition?

A. Since the government currently issues only 65,000 H-1B visas per year, to ensure success, petitions should be filed as early as possible. Petitions can be filed six months in advance of the anticipated start of employment. The immigration fiscal year begins October 1, so petitions should be filed as close to April 1 as possible. For the last several years, there were many more petitions filed than there were H-1B visa numbers available.  When more than 65,000 petitions are received during the first week of the mail-in period, a lottery takes place for those who filed during this first week.

Please note that a separate quota of 20,000 is available to those who hold U.S. Master’s degrees. If this quota is filled prior to the regular H-1B quota, these petitions are put into the regular H-1B pool.

Q. Is my firm required to provide specific financials during the petition process?

A. In most situations, this is not necessary. The request by the government for financial documentation is usually triggered when the company is relatively new, has relatively few employees, or because it has indicated on the petitioning form (I- 129) that its annual income might not be sufficient to pay the wage being offered to the foreign worker who is being sponsored. For those companies that would rather not reveal their exact gross sales or net income to the USCIS, the USCIS usually accepts a response, “in excess of…” which may satisfy the government’s concern about being able to pay the “prevailing/offered wage.”

Q.   How much does the application process cost?

A. Government filing fees are $325 for the I-129 petition, $500 for the anti-fraud fee and $1,500 for the educational fund fee if the company employs more than 25 workers. If the company employs less than 25 workers, the educational fund fee is only $750. If the company wants a guaranteed response within fifteen days, they can pay an extra $1,225 to the government for “Premium Processing.”

Attorneys’ fees will vary significantly. Working with an immigration attorney is strongly advised.  Though legal fees vary, most experienced lawyers charge about $3,000.

Q. How long does the application process take?

A. USCIS processing times are published on their website:  Depending on how busy they are, this can take anywhere from several weeks to several months. Because most H-1B petitions are filed in April but are not effective until October 1, we rarely recommend using “Premium Processing” for this type of application

Q. If a student’s  Employment Authorization Document based on Optional Practical Training expires before October 1, can my firm extend the visa coverage until the October 1 H-1B visa start date?

A. This is no longer a concern. Practical training is automatically extended with the timely filing of an I-129 petition and remains in effect unless the I-129 petition is denied or rejected because if there is a lottery and it is not selected under the lottery for an H-1B visa number.

Q. How do you advise an F-1 student who previously had H1B visa status, regarding how this would impact their H-1B petition process?

A. This would depend on how long ago he had the H-1B status, how much time he has used up under his previous six years of H-1B eligibility, etc. Generally speaking, H-1B visas holders are entitled to keep their H1B visa number for six years. Thus, if at the time they want to have an H-1B petition filed in their behalf there aren’t any H-1B visa numbers available to new applicants, their previous H-1B approval can be very advantageous to them because they may still “own” their H-1B visa number. Since there are so many variables, this question would be better addressed by an experienced immigration attorney after hearing all the particular facts, rather than through a generalized Q & A such as this.

| Employment Authorization, Nonimmigrant