The H-1B category is designed to attract skilled professionals in a specialty occupation to work in the U.S. on a temporary basis. In an H-1B application process, the employer is the petitioner while the alien is the beneficiary. The alien must possess at least a bachelor's degree or its equivalent.

The H-1B is suitable for engineers, professors, researchers, software programmers and other foreign professionals, who normally can work for a total of consecutive 6 years in the U.S. in H-1B status.

What are the Requirements for an H-1B?

The U.S. employer must offer employment in a specialty occupation, either on a full or part time basis.

A specialty occupation requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include: engineers, nurses, professors, researchers, computer programmers and other professionals.

The educational requirement specifies that the alien possess at least a bachelor's degree or its equivalent. If the applicant was awarded his/her degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a degree or its equivalent, her work experience may not be not required.  

If an alien does not meet the educational requirements, experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education.

The employer must attest to the following six (6) conditions:

1. The employer will pay the H-1B employee the higher of:

1. The actual wage rate that it pays to all other individuals with similar experience and qualifications, or

b.      The prevailing wage level for the occupation in the “area of intended employment”, which is defined as the Metropolitan Statistical Area (MSA) and the narrower Primary Metropolitan Statistical Area (PSMA).                                                           

2. Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
3. There is no current strike/lockout involving the prospective H-1B worker's position at his/her workplace.
4. The employer will provide notice of filing of the labor condition application to the employee collective bargaining representative for the H-1B occupation or, lacking such a representative, will conspicuously post such notice at the work site on or within 30 days of filing the Labor Condition Application;
5. The employer will maintain for public examination:

b.      A copy of the Labor Condition Application filed,

c.       Documentation of the salary paid to the H-1B employee,

d.      An explanation of how the actual wage was determined, and

e.       Documentation of the basis used for the prevailing wage;

6. The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates employment prior to the end of the authorized employment period.

What is the Application Process for an H-1B?

After a job is offered and accepted by the alien, the process in order to obtain H-1B visa/status can begin. One can apply for H1-B visa/status six months prior to the commencement of the employment petitioned, but no earlier than this.

For example, if the starting date of your employment as H-1B holder is 11/30/06, then you can submit an application for H-1B visa as early as 5/30/06.  It is important to apply for the visa as early as possible (for the time being this means as early as 6 months before your start date) due to the fact that the H-1B quota is currently being used up very quickly. Given the constraint on the H-1B quota, it is always safe for employers or HR professionals to expedite the recruitment process and sometimes they may have to push forward the starting date of employment.

The following are regular steps involved in trying to obtain H-1B status:

1. Finding the prevailing wage for the area of intended employment. First, we check the prevailing wage from data base on DOL website; If that wage level is higher than one offered by the prospective employer, then we will seek wage determination from an Employment and Security Agency in the state where the intended employment will be located; If the wage level is higher than the offered one, we may also search for other sources. It is noted that finding the prevailing wage for a specific H-1B position may require professional advice from an experienced immigration attorney.
2. Next a Labor Condition Application (LCA) will be filed with the Department of Labor (DOL).  This form will bind the employer to paying the prevailing wage, offer the same benefits to H-1B visa holders as other employees, employment of the alien will not negatively affect the conditions of the other workers, and that there is no striker for the worker’s occupation.   sdfgsdfgsd sdfgsdfg sdfg sgfdsg sdfg sdfgfds  sdfg  dfsgdfs f
3. After approval of the LCA by the DOL, the actual H-1B petition is filed with the USCIS with all the necessary documents, fees, and information.

It takes two to four months for USCIS to process an H-1B petition. For H-1B Premium Processing, it takes only 15 calendar days.

What are filing fees for an H-1B Petition?

Generally, the H-1B petitioner is required to pay the following filing fees for an H-1B petition:

1. $190 for base filing fee;
2. $500 for fraud prevention and detection fee;
3. $750 for an additional fee if the petitioner employs a total of no more than 25 full-time equivalent employees in the U.S. ($1500 for an additional fee if the petitioner employs more than 25 employees)

If premium processing is chosen, there is $1,000 additional premium processing fee.

In some circumstances, the above-mentioned additional fee of $750 or $1,500 can be exempted, when:

• The employer is an institution of higher education; or
• The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education; or
• The employer is a nonprofit research organization or governmental research organization that is primarily engaged in basic research and/or applied research; or
• The employer is a primary or secondary education institute; or
• The employer is a nonprofit entity which engages in an established curriculum-related clinical training or has students register at the institution; or
• The petition is the second or subsequent request for an extension of stay filed by the same employer; or

There are no exemptions for the above-mentioned first two fees of $190 and $500.

What are the Benefits of an H-1B?

There are numerous benefits to the filing of an H1-B. These include:

• Permission to work in the U.S.

The H-1B visa allows specialty occupation workers to enter the United States and work in a professional capacity for a maximum period of six years.

• Multiple year duration

The H-1B status is initially issued for a maximum period of three years and may be renewed for an additional period of three years. Generally speaking, the maximum duration of stay permitted in the United States for an H-1B (or H-4) holder is a cumulative six years.

H-1B status holders can extend their stay beyond the six-year limit in the following 2 situations:

1) If the H1-B holder has filed either a Labor Certification application or an I-140 petition 365 days before the expiration of the six-year limitation, and the LC or I-140 process is still pending, the H-1B visa holder may extend his or her H-1B on annual basis beyond the six-year limitation.  There is no upper limit on total years in H-1B extension under such circumstance as long as the immigration process is still on going.

2) If an H-1B visa holder has an approved I-140 petition AND the immigrant visa number is not available for him/her due to the visa retrogression (not eligible to file I-485 due to visa number issue), the H-1B visa holder may extend his/her H-1B on a three-year interval beyond 6-year limitation.  There is no 365-day requirement for this circumstance. 

• Earnings

The specialty occupation worker is allowed to receive an income from the employer.

• No need to maintain a foreign residence

By law, H-1B visa allows dual intent. With the H-1B visa, there is no need for an alien worker to maintain a foreign residence, as opposed to many other temporary visas.

• Ability to change employers during H-1B status

Under the “portability rule” of the “AC 21” Act, an H-1B worker, who has been subject to H-1B in the past 6 years, can start to work for her new employer as soon as the new employer files a new H-1B petition on behalf of the alien.

• Ability to change employers during the green card application process

An alien may change employers and it will not affect his adjustment of status provided that he/she has filed an I-485 for at least 180 days and continues to work in the same or related field for the new employer.

• Spouses & children welcome

Spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1B/H-4 status holder's authorized duration of stay.

• Dependents permitted to attend school/college

An H-1B visa holder's spouse and children under twenty-one years of age are permitted to attend school based on their H-4 status either on a part-time or full-time basis.

• H-1B visa holder permitted to attend school/college

An H-1B holder is allowed to go to school part time or full time without an F-1 as long as he/she currently holds a valid H-1B status.  This means that while the H-1B employee is attending school, he/she must continue to work for his/her employer. 

The H-1B employee will not be able to receive a teaching assistantship or compensation from his/her school, as that would require a change of status from H-1B to F-1. If the H-1B employee does not continue to work for his employer, he/she will lose H-1B status and must apply for a different status, like F-1

• Multiple employers

One can have multiple H-1Bs because you are allowed to work for more than one U.S. employer.

• Can apply for part-time H-1B status

One can apply for part-time H-1B. As long as your work hours are at least 50% of the normal full time hours in your industry and you satisfy all other requirements for an H-1B, you are eligible to receive a part time H-1B status. If you have an H-1B status already, you can apply for a concurrent H-1B for another part time job. In this situation, there is no set number of hours that the beneficiary must work for each employer

• Dual intent/opportunity to petition for future permanent residence

Immigration laws and USCIS regulations allow the H-1B holder to have "dual intent" with respect to his or her intent to immigrate to the United States. Therefore, an individual seeking the temporary right to work in the U.S. via an H-1B visa may also petition for permanent U.S. residence. One does not preclude the other.

• Possibility to create own business and hire self as an employee

You do not need to be a US citizen or legal permanent resident to start a business in the US. However, whether an alien may work for his own company is another matter. You need an authorization from the USCIS to work for any company including yours.

An alien’s own company in some limited situations may apply H-1B for himself/herself. The USCIS will want to see that the new company will be able to pay the H-1B worker at least the prevailing wage, business plans, a business lease, and other documents proving that it is in fact a real company.

Two key factors the USCIS will scrutinize are 1) the ability to pay and 2) the real business needs. Forming your own company does not automatically mean you can be employed by it. In order to work at your own company as an employee, you still need valid work authorization to work in the US.

• Benching H-1B holders is illegal

According to the Department of Labor, benching of H-1B employees is not allowed.  If the business is slowing down or the H-1B employees have no work to do, the employer must continue to pay the H-1B employee for his/her wages or terminate the employment.

In another word, the only way the employer can stop paying an H-1B wages is by bona fide termination of the employee. 

• Ability to take extend leave/vacation without losing status

H1-B employees may take long unpaid leave without having their status affected.  Keep in mind that if leave is taken, one will not be paid. Furthermore, the employers may terminate employment at any time for any or no reason at all. If employment is terminated, the alien is out of H-1B status immediately. Contrary to a popular misconception, there is no so-called “ten-days grade period.” However, as a rule of thumb in practice, an H-1B employee who is out of status for less than ten days would have a reasonable likelihood of having this out of status period disregarded by the USCIS. As a result, upon termination by the prior employer, the alien must file for a change of status as soon as possible..   

What are the Limitations of an H-1B?

• Temporary duration

The H-1B visa is temporary in nature and may be approved initially for a period of up to three years. It may, however, be renewed for up to another three years. Thus, the usual duration of an H-1B worker's stay in the United States can reach a maximum of 6 years. After six years in H-1B status, the individual must depart the U.S. for at least one year before qualifying again for H-1B status. Under the following circumstances, H-1B holders may extend their status beyond the six-year period:

1. An H-1B holder that is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition, and is waiting for the new quota to apply for an adjustment of status, may apply to the USCIS for extensions of H-1B status beyond the six-year period until his adjustment of status application has been adjudicated. However, USCIS has the discretion to approve or deny such applications and as such is not guaranteed.
2. A beneficiary of EB-1 and NIW, if the immigration is filed over 365 days, either pending or approved, may file the extension of his H-1B beyond the six-year limit.
3. A beneficiary of EB-3 and EB-2 (other than a national interest waiver), if the labor certification was filed more than 365 days, may apply to extend his H-1B status beyond the six-year limit.

• H-1B quota

Currently there is an annual numerical limit/cap of 65,000 H-1B visas issued.

• Ineligible to work prior to approval

Unless otherwise authorized to work, employment may not begin until the USCIS has approved the petition. If the alien already holds an H-1B, the alien may begin work for a new employer as soon as the new employer files an H-1B petition on behalf of the employee with the USCIS.

• Spouse & children not allowed to work

The spouse and children of the H-1B visa holder are not permitted to work, unless otherwise authorized by the USCIS.

• No automatic conversion to permanent residence status

The H-1B visa does not automatically convert to a lawful permanent residence status. H-1B status is independent of the green card application.

• Employment at will

Either the employer or the alien may terminate employment at any time for any or no reason at all. As soon as employment is terminated, your visa is technically not valid. However, the USCIS might allow a short grace period of ten days from the date that the alien is fired or laid off. In other words, the alien will be able to legally remain in the U.S. for ten days and must file a change of status during this time. 

• Discharge of H-1B worker if employer wishes to hire US worker

• The US employer can replace H-1B workers with qualified US workers.  The H-1B employee has no claim to discrimination since a US employer has the Statutory right, but not the obligations to give a job preference to US workers over H-1B workers. But when an H-1B employee is hired, s/he cannot be treated different from other similarly situated US workers.

What is the H-1B Premium Processing Service?

The Premium Processing Service for H-1B petitions began on July 30, 2001. For an additional fee of $1,000, USCIS will approve the petition, deny the petition, or make a request for additional evidence within 15 calendar days. USCIS will refund the $1000 fee if it does not adjudicate a case within the required 15 calendar days.

• Impact of H-1B Cap

As of May 26, 2007, the USCIS has received sufficient H-1B petitions to reach the current fiscal year's 65,000 cap. Therefore, Premium Processing Service will not help expedite the H-1B petitions if they were filed after May 26, 2007 because they will be rejected by the USCIS like other regular H-1B petitions, filed after that cut-off date.

• 15-day calendar period

Premium processing begins on the day the USCIS physically receives a petition or application and ends the day that the Service issues a notice or request. If the USCIS does not issue a notice or request within 15 calendar days, Premium Processing Service fee will be refunded, but the case will continue to be handled. If a given application or petition is not eligible for the Premium Processing Service, the fee will be refunded and the case will be processed under regular circumstances.

• Form I-907 and $1000 Fee

A completed Form I-907, Request for Premium Processing Service, may be filed with a new application or petition, or filed for a pending application or petition. The fee for the Premium Processing Service is $1000, which must be paid with a separate check. It is set by law and cannot be waived for any reason. Again, the fee will be refunded if a notice or request is not issued within the 15 calendar days, or the program cannot be utilized because of the H-1B cap or is otherwise suspended.

• Upgrade to Premium Processing Service

You may upgrade your H-1B case to the Premium Processing Service. If the I-907 is filed after the petition or application is filed, the 15-day period will begin to run when the USCIS receives the I-907 form. When submitting a Form I-907 after a related petition, a copy of the receipt notice (Form I-797) must be included.

H-1B Extensions beyond the 6-Year Limitation

Under the current immigration law, an alien may remain in the United States with H-1B status for up to six years.  For the purpose of this limitation rule, all H-4 period and L status spent in the United States will be counted against the six-year.

There are only two situations an H-1B status holder can extend his/her visa status beyond the 6-year limit. 

1) If the H1-B holder has filed either a Labor Certification application or an I-140 petition 365 days before the expiration of the six-year limitation, and the LC or I-140 process is still pending, the H-1B visa holder may extend his or her H-1B on annual basis beyond the six-year limitation.  There is no upper limit on total years in H-1B extension under such circumstance as long as the immigration process is still on going.

2) If an H-1B visa holder has an approved I-140 petition AND the immigrant visa number is not available for him/her due to the visa retrogression (not eligible to file I-485 due to visa number issue), the H-1B visa holder may extend his/her H-1B on a three-year interval beyond 6-year limitation.  There is no 365-day requirement for this circumstance. 

H-1B Not Limited to the Petitioner Employer

For H-1B extension under the above two circumstances, an H-1B visa holder may extend his/her H-1B with any sponsoring H-1B employer.  The H-1B holder is not limited to extend his/her H-1B with the immigration visa sponsor employer. 

The individual must depart from the U.S. for at least one year before qualifying again for H-1B status with another 6-year period.  After the individual has departed from the US, s/he must undergo the same process when they got their first H-1B visa.  This includes securing an employment offer, submitting Form I-129, getting approval of the petition, and applying for a visa with the US consulate in the country they are residing in.

H-1B Cap, Its Usage, and Other Issues

What is an H-1B Cap?

Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.

The H-1B “Cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on H-1B type of visa or authorized to change status if already in the United States. Therefore, there are two ways to be counted against the cap, applying for an H-1B visa or change of status to H-1B from another non-immigration status (such as F-1, L-1, J-1, and etc.)

The Cap History

Under IMMACT, Congress for the first time imposed an annual “cap” of 65,000 H-1B visas for each fiscal year (FY), which begins October 1 in the previous calendar year and ends September 30 in the current calendar year. The H-1B cap took effect October 1, 1991, at the start of FY 1992. The cap was first reached in FY 1997 and FY 1998. To meet the US employers’ increasing hiring needs, in October of 1998, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) was enacted and temporarily increased the H-1B cap for FY 1999 and FY 2000 to 115,000. The American Competitiveness in the 21st Century Act (“AC21”) was signed into law in October 2000 which increased H-1B numbers to 195,000 for fiscal years 2001, 2002 and 2003. Thus, during these years, the fear for running out of H-1B quota did not materialize.

After the H-1B cap was reduced to 65,000 in FY 2004, the “cap terror” started to take tolls on H-1B petitioners (US employers) and prospective beneficiaries (alien workers).  In FY 2004, the cap was reached on February 17, 2004 (less than 5 months into the fiscal year). For FY 2005, USCIS announced on October 1, 2004, the first day of FY 2005, that the H-1B cap was reached based on petitions that had been filed between April 1, 2004 and October 1, 2004. On August 12, 2005, the USCIS announced that as of August 10, 2005, it had received enough cap-subject H-1B petitions to meet the annual cap for fiscal year 2006. (More than one month prior to the affected fiscal year!).

This H-1B cap tragic drama reached its highlight when USCIS announced on June 1, 2006, that it had received enough H-1B petitions as of May 26 so that it would reject any cap-subject H-1B petitions received after that date. According to Deborah J. Notkin, president of the American Immigration Lawyers Association (AILA), “This is unprecedented. It marks the second year in a row that the H-1B cap has been prematurely reached.”

Current Quota Break Down

As we discussed above, the H-1B cap for FY 2006 is 65,000. Of the 65,000 total, 6,800 are set aside for citizens of Chile and Singapore under free trade agreements. As a result of reserving 6,800 H-1B1 visas for FY 2007, the H-1B cap for that fiscal year is 58,200. However, USCIS has added back to the H-1B cap 6,100 unused FY 2006 H-1B1 visas, for a total of 64,300.

Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year. As FY 2007 H-1B petitions are approved for start dates beginning no earlier than the first day of fiscal year 2007 and reasonable anticipated usage of approved H-1B petitions for any 45-day period exceeds 8,000, USCIS has incorporated its reasonable projection based on H-1B1 usage to date that 700 H-1B1 visa numbers will be used in FY 2006 into the FY 2007 H-1B cap count by adding the remaining 6,100 unused H-1B1 visas back into that count, resulting in a total cap of 64,300 FY 2007 H-1B visas approvable.

Because unused H-1B1 visas for FY 2006 have been already allocated in this manner, there will be no additional later H-1B filing season to use these visas. The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B1 purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H-1B cap count during calendar year 2007. This allocation of FY 2006 H-1B1 visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H-1B1 visas in any way; they will continue to be fully available, with any year-end difference between actual and projected usage expected to be minimal.

The above H-1B cap is what we refer to as “standard cap.” As directed by the H-1B Visa Reform Act of 2004, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters' or higher degrees will be exempt from any fiscal year cap on available H-1B visas. Comparing to “standard cap,” we call this category “advanced degree cap,” which actually increase the “standard cap” by another 20,000. As of June 1, 2006, the USCIS has received approximately 5,830 petitions of this kind, remaining less than 15,000 spots for prospective petitioners to fill up. 

USCIS Procedures After the Cap Is Reached:

In accordance with the procedures announced in the Federal Register at 70 FR 23775 (May 5, 2005) (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004), USCIS has implemented the following process for handling H-1B petitions subject to the FY 2007 cap:

1. USCIS closely monitored FY 2007 H-1B filings and used projections to determine the date on which it received the number of petitions necessary to reach the Congressionally mandated cap.
2. USCIS determined that the Congressionally mandated cap had been exceeded on May 26, 2006, the "final receipt date."
3. USCIS will subject H-1B petitions received on the "final receipt date" to a computer-generated random selection process. This process will enable USCIS to apply the remaining number of available H-1B visas to petitions received on that day.
4. Cap subject H-1B petitions that are not randomly selected in the process described above will be rejected and returned along with the filing fee(s).
5. Petitioners may re-submit the petitions when H-1B visas become available for FY 2008.
6. The earliest date for which a petitioner may file a petition requesting FY 2008 H-1B employment with an employment start date of October 1, 2007, is April 1, 2007.

Based on the published USCIS procedures, even petitioners with a receipt date on May 26, 2006 can not be assured that their petitions will be processed because they are still subject to the random selection process in which only the “lucky” ones will be counted against the cap. It is also noted that any cap-subject petitions received after May 26, 2006 will be rejected by USCIS.

Certain Petitions Not Subject to Cap

Under AC21 and other legislation passed by Congress, there are certain types of employers and alien workers that are “exempt” from the H-1B cap.

1. H-1B beneficiaries, who had worked as H-1B employees within the past six years, were counted against the H-1B quota and currently remain valid non-immigrant status (such as F, H, and etc.), will not be subject to the current H-1B cap;
2. H-1B beneficiaries sponsored by institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations are exempt from H-1B Cap;
3. H-1B physicians who have received a J-1 Conrad 20 waiver of the 2-year home residency requirement based on work in a health professional shortage area are also exempt from H-1B cap.

For the Aliens currently in H-1B status, the newly filed petitions are not subject to H-1B cap in the following four situations:

1) Amended Petitions:  If a “material change” has occurred in the terms and conditions of the employment of the alien employee (H-1B beneficiaries), the employer is required to file an “amended” petition. This type of petition is not subject to the H-1B cap.

2) Extension Petitions: If the H-1B beneficiary’s current status is about to expire and needs an extension for additional time, typically for another 3 years, the employer must file an H-1B “extension” petition. Like amended petitions, extension petitions are not subject to the H-1B cap.

3) Concurrent Employment: If the H-1B worker wants to work for Employer B while also working for Employer A that is subject to the cap or the alien has been subject to the cap in the past six years, Employer B files a “concurrent” H-1B petition on his or her behalf. This type of H-1B petition is not subject to the cap.

4) Sequential Petitions: If the alien work had been subject to the cap in the pats six years and wants to quit his/her job with Employer A and start his/her employment with Employer B, AC 21 portability rule can allow the alien worker to transfer his or her employment to the new employer prior to the approval of the petition by USCIS. Like the petitions above, sequential petitions are not subject to the cap either.

However, we should caution that the above situations may not necessarily fit to every H-1B alien worker who makes a job transfer. For instance, John is a university researcher and currently in H-1B status. Recently he finds a new job in private sector and the private employer will petition for H-1B for John. Under this circumstance, John may be subject to the H-1B cap because as a researcher, John has never been counted against the H-1B quota when he was employed by an institution of higher institution. 

Coping Strategies for Alien Workers:

For an alien worker expecting to work in US under H-1B, there is no other issue more frustrating than a prematurely used up H-1B quota when s/he just receives a job offer from a US employer. As legal service provider, we sympathize with those alien workers in hardship. The following strategies are only general suggestions because various individual cases may lead to different strategies:

1. The advanced degree exemption cap (20,000) has not run out yet, with more than 14,000 remaining on May 31, 2006.  It seems we have a far tighter situation in the caps this year. We anticipate the 20000 advanced degree cap will also be met soon, because more and more qualified aliens will turn to this pool because there are no more H1B visas available in the 65,000 standard cap. If you have earned an American master’s or higher degree, you’re qualified for this cap. In order to catch the cap, you may even let your employer file H-1B petition under advanced degree category if you will obtain your degree before the start of the H-1B employment.
2. OPT (Optional Practical Training) is anther viable option if you hold a valid F1 visa. OPT allows a student to work in their filed of study for a period of twelve months, followed by a 2 months grace period during which can remain in the US legally. Therefore, if your OPT starts from August 2006, you can work until August 2007, with the two more month grace period, you can bridge the cap and eligible for the H-1B for FY 2008.
3. Another potential avenue is to change your status from OPT to EAD, without an H1B visa. Some green card applications are not based on H1B. For example, Green card application based on NIW does not require an H1B or employer’s sponsorship. If your I140 application is approved on time, and the status of the green card visa is available to you, you can submit the I485 application. Based on the I485 application, an EAD can be filed simultaneously. The processing speed of EAD is very fast right now. Then, it’s possible for you to obtain an valid EAD before your OPT expires. However, there are also some uncertainties in this option.