Students in F1 status often have doubts about Optional Practical Training (OPT) and how to obtain H1B 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 H1B.
Before we begin our journey, however, let us review some key concepts involved in change of status from OPT to H1B:
F1 Visa/Status: The F1 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 F1 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.
H1B Visa/Status: The H1B 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.
H1B Cap: The H1B visa has an annual numerical limit of 65,000 visas each fiscal year. An employer may not file an H1B 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 H1B petition for the following fiscal year starting October 1st.
H1B Cap-Gap: The H1B “cap-gap” is a period of stay and/or work authorized by USCIS and ICE for F1 students whose student status, OPT or grace period expires after an H1B Change of Status petition is filed but before October 1, the beginning of the next fiscal year.
How to Change Status from F1 OPT to H1B Visa in 4 Easy Steps?
Step 1: Find an Employer Willing to File an H1B on Your Behalf
If you are an F1 student who wants to change status from OPT to H1B, your very first step will be to find an employer who is willing to file an H1B petition on your behalf.
Step 2: Beat the H1B Cap
Having a job offer is not enough in itself. USCIS has a total of 65,000 H1Bs available under the cap under the general category and an additional 20,000 H1Bs available for those who have a U.S. master’s degree or higher. In order to obtain H1B status in a fiscal year, you have to ensure timely filing of your H1B petition.
Step 3: Employer Files the H1B Petition
Now that you have a job offer from an employer in the U.S. and H1B cap is still open for the fiscal year, your employer must file an H1B petition on your behalf. Thereafter, if the H1B petition is approved, you will be granted H1B status.
NOTE: If you are an F1 status and your employer has filed the H1B petition as a “Change of Status”, then the earliest date that you may start the approved H1B employment is October 1st.
Step 4: Seek Cap-Gap Extension
Current regulations allow certain students with pending or approved H1B petitions to remain in F1 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 H1B 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: F1 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 H1B visa at a consular post abroad, and then seek readmission to the United States in H1B status for the dates reflected on the approved H1B 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 F1 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 F1 status. The student will need to apply for an H1B visa at a U.S. embassy or consulate abroad before returning to the U.S. Also, the H1B 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 H1B petition.
F1 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 H1B petitions for F1 students employed on OPT need to ensure that the applications are timely filed during the H1B 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 H1B 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 H1B visa in a U.S. consulate or embassy.
Contact VisaPro if you have any questions regarding conversion from OPT to H1B or the H1B visa.
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The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys http://consultattorney.visapro.com. Our experienced attorneys will be happy to assist you.
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