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There are three categories of H-1B employees who are stuck in their home country.
The first category is those who have studied in USA on H-1B or entered USA on L-1B or F1 status and converted to H-1B status. They do not have a valid H-1B visa stamp but have one or more pay stubs when they are in H-1B status in USA.
The second category are employees whose H1-B petition was approved, and visa stamped but their employer did not send them to USA.
The third category are employees whose H-1B petition was approved but they did not go for visa stamping.
The first two categories are exempt from the annual quota. The third category is a grey area with 50-50 chances of H-1B approval under the annual quota exempt category.
An employee is exempt for 6 years from the annual H-1B quota limit from the date of expiry of H-1B petition. For example, if an employee has an approved H-1B petition from October 2010 to October 2013 the employee is exempt from the annual quota till Oct 2019.
The decision to stay in your home country even when you are H-1B annual quota exempt is a personal one. Many ex H-1B employees have supplemental agricultural income, own houses for which they do not need to pay rent and other sources of income which contribute to a decent upper middle class living in India.
However, there are many ex-H1B employees in India who are struggling with high inflation, decreasing salaries, increasing rents or home mortgage payments and lack of basic living standards like pollution free air, 30 minutes commute from home to work, individualistic society with minimal emphasis on money, caste, creed and neighbors.
It is very difficult to get a H-1B approval and visa stamp even though you are quota exempt because full time employers very rarely interview employees from overseas and insist on a face to face interview.
Short term intra company transfers to Europe do not lead to permanent residency and many European countries are trying to decrease Permanent Residency Applications by making language examinations mandatory in their own language e.g. German, French before you apply for permanent residency.
Swedish Migration Agency has been denying extensions of work permits for IT worker. Denmark Immigration Service and UK Home office are following the same path. Singapore is not extending S pass and Employment pass work permits. Skilled workers are facing immigration challenges in every country in the world.
Indian implementations partners promise to file H-1B for quota exempt H-1B employees, but the chances are slim because they are slowly moving to a 90-10 offshore model where only 10% of employees are in USA and remaining employees work from India due to Level 2 wages instead of the standard minimum wage of 60k per annum that they enjoyed for 27 years under the H-1B program.
They have to pay between 80-110k per annum and are very reluctant to do so because the top management of these companies is more worried about the shrinking profits due to low billing margins and stock prices than the welfare of H-1B employees.
The better option is to find a university in USA and come to USA on F1 visa from that university. You can switch to H-1B after 2-3 months as you will be H-1B annual quota exempt.
A semester of master’s in information systems or computer science will get additional college credit for IT courses for educational evaluations which will help overcome specialty occupation H-1B RFE if you have majored in non-IT degree. If you leave the master’s degree after completing one semester you can still use the courses completed for educational evaluation for specialty occupation.
Lastly, ask your new employer for certified LCA or check H-1B public data to make sure that your employer is not filing your H-1B petition under the job title Programmer Analyst, Computer Programmer, Computer Systems Analyst, Systems Analyst or SOC codes 11-1121 or 11-1131 which have a 90% chance of denial.
You have to make sure that your new employer is filing under software developer title for java, .net, php developers (soc code 11-1132) or software engineer for QA, BA, Data Warehousing, Business Analytics, Reporting Tools and Middleware (same Soc code 11-1132).
Many smaller IT consulting companies do not have the knowledge to deal with boilerplate RFE’s on specialty occupation, employer employee relationship and education for H-1B employees.
We request H-1B employees who are subject to an imminent layoff to send their resume to [email protected] and we will help them find a new employer who can sponsor them.
Press release by: Indian Clicks, LLC
