H-1B Petition Pitfalls — And How International Students Can Avoid Them

There are currently over 1 million international students in the U.S., including over 375,000 graduate students. Many have come with the hope of following a well-trodden path. They come to America to get a bachelor’s or master’s degree, then work after graduation under the bureaucratic-sounding Optional Practical Training status until and if they get lucky to acquire H-1B status by being sponsored through an employer. And if all goes well, they ultimately get a green card.

There have always been bumps and pitfalls along this path, but H-1B visa status has historically been a reasonably reliable bridge to permanent residence for some of the world’s best and brightest young professionals who are seeking to establish homes and careers in the U.S. However, recent trends and developments have destabilized this H-1B bridge. If you are an international student in today’s immigration climate, there is a real risk that you may invest up to hundreds of thousands of dollars in obtaining a degree in the U.S. only to find that you are unable to obtain an employment visa allowing you to pursue the career that you want.  

In my practice as a business immigration attorney, I advise students to begin considering their future employment visa options as early as possible, even before enrolling in a degree program. Many international students can improve their chances of obtaining certain visas and increase their options over the course of their degree programs with careful planning.

CRACKS IN THE H-1B BRIDGE

Although the H-1B bridge from graduation to permanent residency continues to work for many, the bridge has become more perilous in recent years (and could soon face additional challenges) due to the following factors and developments:

• H-1B lottery selection. To obtain H-1B status, an individual must be selected in the H-1B lottery and then his or her petition must be approved. The percentage of H-1B petitions selected in the lottery has varied over the past few years from 79% in 2013, down to 40% in 2016. Recent changes in the lottery system improve the odds for individuals with a master’s degree while lowering odds for individuals with only a bachelor’s degree.
• Increased denials. After selection in the H-1B lottery, a petition must then be reviewed and approved by USCIS. Between 2015 and 2019, USCIS has quadrupled its denial rate for H-1B petitions (from 6% to 24%), as the Trump administration has made concerted efforts to dismantle the H-1B program. Denials have increased across the board, although USCIS’s increased scrutiny has particularly targeted Indian nationals and individuals with MBAs.
• H-1B renewals. If an H-1B petition is selected in the lottery and approved, an individual can initially receive up to 3 years of H-1B status, which can be extended to a total of 6 years. Over the course of 6 years, an individual will need multiple H-1B petitions to extend H-1B status or to reflect promotions or significant job changes. USCIS scrutiny and denial rates have increased for H-1B extensions and amendments, even where the individual’s job details and eligibility have not changed materially since the initial petition.
• The gig economy. Graduates are less likely now to take a corporate job and hold it for several years after graduation while they work towards a green card. Many want the flexibility of working multiple jobs or freelancing and many others want the excitement and potentially large payoff of starting their own company. But for a variety of reasons, H-1B status does not work well for people in the gig economy.
• Future Changes. Further disruption may be on the horizon, as the Trump administration has signaled that it will enact new OPT regulations, which will likely make it harder for graduates to remain and work in the U.S. while they wait and hope for selection in the H-1B lottery and approval. 

To avoid pitfalls and mitigate risks in crossing the H-1B bridge, international students should consider taking the following precautions:

• Consider a degree in a STEM field. Before enrolling in a degree program, verify with the school that the degree program falls into an acceptable category that will allow you to obtain a 2 year STEM OPT extension (3 years of total OPT time). This will give you extra years to get selected and approved in the H-1B lottery or give you sufficient time to make yourself eligible for a different type of visa.
• Study in the field where you will work. To qualify for H-1B, the position offered to you must require a degree in a specific specialty or a closely related field, and you must have a degree that fulfills that requirement. While it might make sense for a company to hire someone with a bachelor’s in economics and an MBA to work on software development, this will not make sense to USCIS and may result in an H-1B denial.  
• Specialize within your MBA program. If you are enrolled in a U.S. MBA program, focus your coursework on a specific area as much as you can. USCIS believes that an MBA is a general business degree and often finds that positions that require an MBA are not sufficiently specialized to qualify for H-1B. However, USCIS may accept that your MBA is a specialized degree if it is clear from your transcript that you have concentrated your studies in a specific area related to your position. For example, if you plan to work in finance, take all the finance courses available in your program that you can. 
• Note that there are many MBA programs that qualify as STEM degrees. Studying in one of these programs will give you 3 years of OPT status rather than just 1. See the next page for links to Poets&Quants‘ coverage of STEM MBAs at the top schools.