OPT to H-1B in 4 Easy Steps
05/24/2011
Students in F-1 status often have doubts about Optional Practical Training (OPT) and how to obtain H-1B status to 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 the foreign national student once they have completed OPT. For the benefit of our readers, this article presents an introduction to the various factors that one should consider when changing status from OPT to H-1B.
Before we begin our journey, however, let us review some key concepts involved in change of status from OPT to H-1B:
F-1 Visa/Status
The F-1 is a nonimmigrant student classification that allows foreign nationals to pursue education in the United States.
OPT
Optional Practical Training or OPT is a 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 nine months (generally, 2 semesters). Although the student does not have to change status, the student must apply for an Employment Authorization Document before commencing employment. OPT is usually granted for 12 months, unless the field of study is within STEM (science, technology, engineering, mathematics) wherein the student is eligible for a 17-month extension.
H-1B Visa/Status
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' and must require a bachelor's degree as a minimum for entry into the field.
H-1B Cap
The H-1B visa has an annual numerical limit of 65,000 visas each fiscal year. 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.
NOTE
April 1st is the earliest date that an employer can file an H-1B petition for the following fiscal year starting October 1st.
H-1B 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 expires after an H-1B Change of Status petition is filed but before October 1, the beginning of the next fiscal year.
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.
Step 2 Beat the H-1B Cap
Having a job offer is not enough in itself. USCIS has a total of 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 your H-1B petition.
Step 3 Employer Files the H-1B Petition
Now that you have a job offer from an employer in the U.S. and H-1B cap is still open for the fiscal year, your employer must file an H-1B petition on your behalf. Thereafter, if the H-1B petition is approved, you will be granted H-1B status.
NOTE
If you are an 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 is October 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.
Travel during the Cap-Gap Extension Period
Regulations state that a student with an unexpired Employment Authorization Document (EAD) issued for post-completion OPT, who is otherwise admissible, may return to the United States to resume employment after a temporary absence. By definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired and as a result, if a student granted a cap-gap extension travels outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a U.S. embassy or consulate abroad before returning to the U.S. Also, the H-1B petition is generally for an October 1st or later start date, and students must understand that they may not be able to enter the U.S. prior to the date mentioned on the approved H-1B petition.
Conclusion
F-1 students in a bachelor's, master's, or doctoral degree program may apply for authorization to engage in temporary employment for Optional Practical Training (OPT) directly related to their major area of study. 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.
Students changing status from OPT to H-1B must also keep in mind that if they leave the U.S. during the Cap-gap extension, they may not be able to return back to the U.S. before the start date mentioned in the petition and without obtaining an H-1B visa in a U.S. consulate or embassy.
Before we begin our journey, however, let us review some key concepts involved in change of status from OPT to H-1B:
F-1 Visa/Status
The F-1 is a nonimmigrant student classification that allows foreign nationals to pursue education in the United States.
OPT
Optional Practical Training or OPT is a 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 nine months (generally, 2 semesters). Although the student does not have to change status, the student must apply for an Employment Authorization Document before commencing employment. OPT is usually granted for 12 months, unless the field of study is within STEM (science, technology, engineering, mathematics) wherein the student is eligible for a 17-month extension.
H-1B Visa/Status
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' and must require a bachelor's degree as a minimum for entry into the field.
H-1B Cap
The H-1B visa has an annual numerical limit of 65,000 visas each fiscal year. 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.
NOTE
April 1st is the earliest date that an employer can file an H-1B petition for the following fiscal year starting October 1st.
H-1B 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 expires after an H-1B Change of Status petition is filed but before October 1, the beginning of the next fiscal year.
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.
Step 2 Beat the H-1B Cap
Having a job offer is not enough in itself. USCIS has a total of 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 your H-1B petition.
Step 3 Employer Files the H-1B Petition
Now that you have a job offer from an employer in the U.S. and H-1B cap is still open for the fiscal year, your employer must file an H-1B petition on your behalf. Thereafter, if the H-1B petition is approved, you will be granted H-1B status.
NOTE
If you are an 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 is October 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.
Travel during the Cap-Gap Extension Period
Regulations state that a student with an unexpired Employment Authorization Document (EAD) issued for post-completion OPT, who is otherwise admissible, may return to the United States to resume employment after a temporary absence. By definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired and as a result, if a student granted a cap-gap extension travels outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a U.S. embassy or consulate abroad before returning to the U.S. Also, the H-1B petition is generally for an October 1st or later start date, and students must understand that they may not be able to enter the U.S. prior to the date mentioned on the approved H-1B petition.
Conclusion
F-1 students in a bachelor's, master's, or doctoral degree program may apply for authorization to engage in temporary employment for Optional Practical Training (OPT) directly related to their major area of study. 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.
Students changing status from OPT to H-1B must also keep in mind that if they leave the U.S. during the Cap-gap extension, they may not be able to return back to the U.S. before the start date mentioned in the petition and without obtaining an H-1B visa in a U.S. consulate or embassy.
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