Introduction

Students in F1 status often get confused about the process from Optional Practical Training (OPT) to H-1B status so that they can continue their employment in the U.S. Employers are also oftentimes unclear about the procedure to be followed to enable them to retain the services of talented foreign national students once they have completed OPT.

Here, we'll introduce our readers to the various factors that one should consider when changing status from F-1/OPT to H-1B.

Before we begin our journey, however, let us review some key concepts involved in change of status from F-1/OPT to H-1B:

F1 Visa/Status: The F-1 is a nonimmigrant visa classification for students pursuing full-time education in the United States.

OPT: Optional Practical Training or OPT is the period during which a foreign student in valid F-1 status is allowed to accept employment in a field directly related to his or her major field of study. To be considered for OPT, the student must have completed or have been pursuing a degree and maintained status for consecutive nine months (generally, 2 semesters). Once approved for OPT by the educational institution's foreign student adviser, and before commencing employment, the student must apply for and obtain an Employment Authorization Document. OPT is usually granted for a maximum of 12 months, unless the field of study is within STEM (science, technology, engineering, mathematics) wherein the student is eligible for an additional 24-month extension.

H1B Visa/Status: The The H-1B is a nonimmigrant visa classification for "specialty" workers. It allows foreign national to work temporarily in the U.S. and perform services in a prearranged professional job. The job must be in a 'specialty occupation' which must require a bachelor's degree in a specific field as a minimum for entry into the occupation.

H1B "Cap": The H-1B visa has an annual numerical limit of 65,000 visas each fiscal year (an additional 20,000 are set aside for those with a Master's degree from a qualifying US institution). An employer may not file an H-1B petition earlier than six months in advance of the date of actual need for the beneficiary's services. Because October 1 is the start of the fiscal year, April 1st is the earliest date that an employer can file an H-1B petition for the followingfiscal year.

H1B Cap-Gap:The H-1B "cap-gap" is a period of stay and/or work authorized by USCIS and ICE for F-1 students whose student status, OPT or grace period expiresafter an H-1BChange of Statuspetition is filed but before October 1, the beginning of the next fiscal year.

In this article, we shall look how to change Status from F-1/OPT to H-1B Visa in 4 easy steps

Step 1: Find An Employer Willing To File An H-1B On Your Behalf

If you are an F-1 student who wants to change status from OPT to H-1B, your very first step will be to find an employer who is willing to file an H-1B petition on your behalf. While this is usually the employer you are employed with on OPT, there is no requirement that the H-1B petitioner and the OPT employer be the same.

Step 2: Beat The H1B Cap

Having a job offer is not enough in itself. USCIS has a total of only 65,000 H-1Bs available under the cap under the general category and an additional 20,000 H-1Bs available for those who have a U.S. master's degree or higher. In order to obtain H-1B status in a fiscal year, you have to ensure timely filing of the H-1B electronic registration.

Unfortunately, even then, making it into the H-1B Cap is not guaranteed.  Each of the last several years has seen USCIS conduct an H-1B Cap Lottery to determine who gets a chance at obtaining an H-1B.

Step 3: Employer Files The H1B Petition

Now that you have a job offer from an employer in the U.S., the employer must submit the electronic registration on your behalf during the designated H-1B Cap registration period. If USCIS receives more than sufficient registrations to meet the H-1B Cap, they will conduct the lottery. Thereafter, if your H-1B registration is picked in the lottery, the petitioner must submit the petition to USCIS starting on April 1 and continuing for at least 90 days.

NOTE: If you are in F-1 status and your employer has filed the H-1B petition as a "Change of Status", then the earliest date that you may start the approved H-1B employment isOctober 1st .

Step 4: Seek Cap-Gap Extension

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status in the United States during the period of time when the student's status and/or work authorization would otherwise expire up to the start of his or her approved H-1B employment period. Thus, if you believe you will be in such a situation, do not panic and find out if you are eligible for "Cap-Gap."

NOTE: F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1 are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status for the dates reflected on the approved H-1B petition.

Conclusion

Many F-1 students may apply for authorization to engage in temporary employment for Optional Practical Training (OPT) directly related to their major area of study upon graduation. Employers filing H-1B petitions for F-1 students employed on OPT need to ensure that the applications are timely filed during the H-1B acceptance period and while the student's authorized duration of status admission is still in effect to avoid any undesirable breaks in employment arising due to cap-gap issues.

If you have questions about converting from F-1/OPT to H-1B, don't wait until the last minute.  Preparing ahead of time may mean the difference between working in the U.S. or going back home.

Contact VisaPro for a free assessment with an immigration lawyer if you have any questions regarding conversion from OPT to H-1B or the H-1B Cap.

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