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F1 to H1B 1

If you’re an F1 student approaching graduation and you wish to work in the United States, you may be eligible to do so by petitioning for an H1B visa. In order to do a change of status from F1 to H1B, you may follow one of two options: apply for an interim OPT phase before H1B, or apply for H1B directly from F1. While both options allow you to work in the U.S., there are some advantages to electing to participate in the OPT program first. Below, we’ll go over those advantages in addition to the requirements of the H1B visa, how to obtain your visa after graduation, as well as the restrictions once you receive your H1B visa.

What is the H1B Work Visa?

The H1B visa permits U.S. employers to hire alien workers for positions that require specialized knowledge and training. They are non-immigration visas that allow you to work in the U.S. for an initial period of three years, provided you hold a bachelor’s degree or higher—you may also be eligible if you have significant professional experience. After that, you may apply for for an extension of an additional three years provided that you’re within six months of your H1B visa’s expiration date.

You are eligible to obtain an H1B visa provided:

  • Your employer will pay you the same wage they would pay a U.S. worker
  • Your working conditions are up to par with the conditions of similar U.S. employees
  • You are not a “scab” (a person who replaces workers who are on strike)
  • Your employer has given notice of their intent to hire you to any union or other employee representative body

If your H1B application is approved, you will:

  • Be eligible to work in the United States for three years, or up to six years if you are granted an extension
  • Be able to bring your spouse or child
  • Be allowed to travel to and from the U.S.
  • Be eligible to apply for a green card

The H1B visa provides some advantages over other work visas: Under an H1B visa you are not required to hold a foreign residence, you are permitted to change employers so long as you file another H1B application, you may apply for a green card while in the U.S. on an H1B visa, you are allowed to attend classes at a university, you may create your own business, and you may take a vacation without jeopardizing your H1B status.

F1 to H1B 3

OPT (Optional Practical Training)

OPT allows F1 students to work in the U.S. for up to 12 months after graduation—you may apply for a 17-month extension if you hold a degree in science, tech, engineering, or math (STEM). Your work may be full or part time and take place anywhere in the United States. The advantage of applying for OPT after university is that it allows you more time to find an H1B employer, at which point you may then petition to convert to H1B visa status.

In order to be eligible for OPT, you must be an F1 student enrolled at a USCIS (United States Citizenship and Immigration Services) approved institution for a minimum of one academic year. If you are approved for OPT, your work must be directly related to your area of study. Additionally, your place of employment must be endorsed by your institution’s International Students and Scholars (OISS) office as well as USCIS. OPT authorization can take up to 90 days, so you should file your application as soon as possible.

Students who participate in OPT:

  • Gain field experience in their area of study
  • May begin work only once they have received their EAD (Employment Authorization Document
  • Work in the United States for an initial period of 12 months, applying for an extension of 17 months if they hold a STEM degree
  • May petition for H1B during their OPT period

Steps for OPT to H1B, F1 to H1B

Once you obtain your degree, you may apply for a direct F1 to H1B change of status or elect to participate in the OPT program while you search for an H1B employer. It is important to note that because you are required to hold a degree at the time you file your H1B petition, OPT may be your best option for staying in the United States if you have not graduated by the application start date of April 1. If you do not elect OPT and your F1 visa expires prior to obtaining your H1B visa, you will have to leave the United States. Similarly, you will have to leave the United States if you fail to find H1B employment before your OPT status expires.

Once you are ready to apply for an H1B visa, you must:

Find an Employer to Sponsor Your H1B Status

Before you can pursue a change of status from F1 to H1B, you must secure employment with an H1B employer. Your employer must be able to prove to USCIS that you will be paid at least 95 percent of the prevailing wage given to similar U.S. workers and that your status as an H1B employee will not negatively affect the work conditions of U.S. employees.

Have Your Employer File Your H1B Petition

It is important to note that your H1B visa must be filed by your employer. Once the petition is filed, it can take anywhere from six months to three years. It may be in your best interest to elect USCIS’ premium process, an expedited process that guarantees your case will be reviewed within 15 days. However, premium processing comes at an added hefty cost of $1000 USD.

USCIS begins accepting H1B applications for the following fiscal year on April 1 of the current year. Because there is a limited number of visas available, filing in a timely manner is imperative. While USCIS is required to accept applications for at least 5 days after the filing period opens, they only have 65,000 visas available for regular graduates and 20,000 visas for graduates with advanced degrees. If your change of status from F1 to H1B is approved, you may begin working for your new employer on October 1.

Consider a Cap-Gap Extension

After you have filed for your H1B visa, you may be eligible for a cap-gap extension. A cap-gap extension allows you to stay and work in the U.S. on your F1 visa while your H1B case is pending. If you do not qualify for a cap-gap extension and your F1 visa expires, you will be required to leave the United States.

Restrictions of H1B Visa

If your H1B visa petition is approved, there are still some restrictions you need to be aware of:

  • You may only work for the employer that is listed on your H1B petition. If you wish to change employers, your new employer will have to file a new H1B petition on your behalf. That petition must be approved prior to your last day with your former employer.
  • If you are terminated from your position and you are unable to obtain new employment from another H1B employer prior to the date of your termination, your H1B status will be immediately revoked and you will be required to leave the country. While it is not strictly enforced, the employer from which you were terminated may pay for your airfare back to your country of citizenship.
  • After the maximum stay of six years has been reached, you must leave the United States for a minimum of one year before you can become eligible for H1B again.
  • Even once your employer petitions for an H1B visa on your behalf, you may not begin work until your application is approved. Should you begin work prior to approval, you jeopardize your H1B status.
  • While your spouse and any unmarried child under the age of 21 may join you in the United States under an H4 visa, they are not eligible to work in the United States. However, they are permitted to attend school, apply for a driver’s license, and open a U.S. bank account.
  • If your employer decides to replace you with a willing and qualified U.S. employee, you cannot claim discrimination. If you do not find another H1B employer prior to your termination date, you will be required to leave the United States.

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Necessary Documents for H1B Application

In order to apply for an H1B visa, you and your H1B employer will be required to provide a series of documents:

Documents You Must Provide

  • Proof of employment offer from valid H1B employer.
  • Updated resume
  • Passport
  • Degree certificate and transcripts*
  • Employment references*
  • Professional license*

*Document must only be provided if applicable to the position and the applicant.

Documents Your Employer Must provide:

  • Job title and description
  • Proposed salary
  • Federal Tax ID number
  • Minimum requirements for the position
  • Name and title the person filing the petition
  • Name and address of the company
  • Brochures and other informational resources about the company
  • Completed visa filing forms and fees

A change of status from F1 to H1B can be a complicated process to navigate on your own. If you are interested in getting more information on how to obtain your H1B visa, contact the experts at Katz Law Office, Ltd. today for a free consultation.

 

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None of the advice contained in these materials serves as a substitute for individualized legal representation by a licensed attorney with experience in the practice area.

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