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Should People With F-1/J-1 Ending in Future Years Seek H-1 B Now? By Roger Algase

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With the April 1 deadline to enter this year's cap subject H-1B casino and start the roulette wheel spinning, some people who are beginning F-1 OPT practical training or a J-1 intern/training program which will not expire until next year, or who will be eligible for 17-month STEM OPT extensions, may be thinking of taking a pass on applying for this year's H-1B random selection H-1B lottery.

From one perspective, this could seem to be a wise decision. For H-1B beneficiaries without US master degrees, the odds of being picked in the H-1B lottery last year came out to be almost exactly 2 to 1 against, based on the total number of petitions that came in. With the economy widely considered to be even stronger this year, the odds may be even worse.

(Of course, US master degree holders are in a better position because of the additional 20,000 visas set aside for them. I have not yet seen any statistics on how many of last year's total number of cap-subject petitions were in this category, so I cannot estimate the odds of being picked for this favored group.)

So, purely from a gambler's point of view, it might not be a good bet to enter the H-1B lottery free-for all this year, but better to wait until next year instead when the F-1 OPT or J-1 status will be closer to running out. (I am not factoring in J-1 visa holders who are subject to the 2-year foreign residence requirement into this calculation.)

However, is this really the best strategy? True, there is always the hope that by next year, Congress will have fixed the H-1B visa shortage problem. But this hope has been with us for the past dozen or so years, and so far Congress has not acted.

Is a Congress that is so far under the sway of right wing extremists who are against all immigration that it has not even been able (as of the time of this writing - there are reports that it may finally do so shortly) agree to fund the DHS in a time of some of the most vicious, sophisticated and best organized terror threats that the world has ever known likely to take any action on H-1B by next year?

Hope springs eternal, but reality has a way of intruding, especially when in comes to the H-1B cap. Would it not make more sense to join in the H-1B lottery and throw the dice as many times as one can in order to give oneself at least two chances, rather than only one, of being favored by Lady Luck?

What might seem like a wise strategy of passing up the H-1 casino this year might not look as sensible from the point of hindsight next year, when one's OPT or J-1 training/intern status is closer to running out and one is down to a single do-or-die chance to be picked for H-1B which could determine the entire course of the person's future in the US (or whether the person will have a future in this country at all).

Just a thought worth considering as we get closer to April 1. Is it really a good strategy to let this chance go by?
_______________________________
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School who has been practicing employment-based and family-based immigration law for more than 30 years. His practice is focused on H-1B and O-1 work visas, J-1 training visas and green cards through labor certification (PERM), extraordinary ability (EB-1) and opposite sex or same sex marriage, among other immigration and citizenship cases. His email address is algaselex@gmail.com

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Updated 03-03-2015 at 02:00 PM by ImmigrationLawBlogs

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