OPT to H-1B

Beyond OPT to H-1B

Overview

Many students on Optional Practical Training (OPT) wonder how they can continue working beyond OPT. These questions and answers provide a general introduction to the H-1B classification, which is often used after OPT ends.

Frequently Asked Questions

What is the H-1B classification?

H-1B is a nonimmigrant classification for temporary employment in a specialty occupation. It is commonly called the “working visa” because it is the most commonly used work visa. While OPT is a benefit of F-1 status that allows students to work for one year (possibly longer if the student is eligible for an extension), H-1B is a separate nonimmigrant classification specifically for employment.

What is a specialty occupation?

A specialty occupation requires specialized knowledge along with at least a bachelor’s degree or its equivalent. Common fields with specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and arts.

Can students apply for H-1B status themselves?

No. An employer must initiate the application process on behalf of the employee. A student must find a job with an employer who will petition for the H-1B.

What are the steps in the process?

The employer submits applications to the U.S. Department of Labor and U.S. Citizenship and Immigration Services (USCIS) to demonstrate that the employer, position, and employee meet the criteria for H-1B status. If the employee is in the U.S., a change of status from F-1 to H-1B within the U.S. may be possible. If outside the U.S., the employee applies for an H-1B visa at a U.S. consulate and enters the U.S. in H-1B status.

What is the H-1B cap?

There is a limit of 65,000 new H-1B visas granted each year, plus an additional 20,000 visas for those who have earned advanced degrees (i.e., MA, PhD) in the U.S. USCIS rejects cap-subject applications received after the cap is met. In recent years, USCIS instituted a “lottery” system for accepting applications because more than 65,000 regular H-1Bs were received on the first possible day of filing. Timely filed cases that are not chosen through the lottery system are rejected.

Are any employers exempt from the cap?

Some categories of employers are not subject to the cap. These employers include U.S. institutions of higher education, university-affiliated nonprofit entities, and nonprofit or governmental research organizations.

When can the application process begin?

Employers subject to the H-1B cap can submit applications up to six months prior to the next fiscal year. Because the U.S. government’s fiscal year begins October 1, applications can be submitted April 1 for the upcoming fiscal year. H-1B status, including work authorization, becomes effective October 1 of that year. Employers exempt from the cap can submit applications any time and, for new H-1Bs, H-1B status becomes effective when the application is approved.

What is the cap-gap extension policy for students whose OPT authorization will expire before their H-1B status begins October 1?

Duration of status and work authorization are extended for a student on OPT who is the beneficiary of a timely filed H-1B petition requesting an employment start date of October 1 of the following fiscal year. The extension of duration of status and work authorization automatically terminates upon rejection, denial, or revocation of the H-1B petition filed on the student’s behalf. Unfortunately, most H-1B applicants are subject to the cap, and there are far more individuals hoping to obtain H-1B status than the cap permits. Many students may have timely H-1B petitions filed on their behalf that are rejected by the USCIS lottery, ending the extension of duration of status and work authorization.

If I change to H-1B status, but later decide to quit my job or am fired, can I change back to student status and re-claim any unused OPT time?

If you return to school for a new degree level in authorized F-1 status, you may be eligible for a new 12 month period of OPT. However, you cannot re-claim unused OPT from a previous degree.

If an employer files an H-1B petition to change my status from F to H-1B, can I travel abroad while the application is pending?

This is generally unadvisable, as USCIS may consider you to have abandoned the “change of status” portion of your H-1B petition. Because of this, even if your H-1B is granted, you would be required to apply for an H-1B visa abroad. You should talk to an attorney about issues related to travel while your H-1B petition is pending.

If an employer is not familiar with the process, can students hire immigration lawyers to help?

A student may hire an immigration lawyer to provide guidance on the H-1B process, its impact on their family, and to review an H-1B application filed on his or her behalf.

Is there a way to find out which employers have hired employees in H-1B status?

The U.S. government provides this type of data. Select the Case Disclosure Data, H-1B Data subsection.

Is there any advice you can give me about the H-1B process?

Explore your H-1B options as early as possible. Because most employers are subject to the cap, they need to file H-1B petitions on April 1st or shortly thereafter in order to obtain an H-1B for the following October. It is important to discuss this option with your employer well in advance of April 1st of the year your OPT will expire. Be involved with the process and make educated decisions. Remember that the ultimate responsibility for maintaining your status rests with you, not your employer.

It is illegal for an employer to file an H-1B on your behalf for a position that you have no intention of taking, and which the employer has no intention of offering you, just so that you can increase your chances of being counted under the cap. In fact, if you knowingly let an employer do this, it could be considered fraud under INA §212(a)(6)(C)(i), and may bar you from any future immigration benefits in the United States and even subject you to potential criminal prosecution! Be particularly wary of any employers who offer to file an H-1B for you for a fee.

Where can I find more information regarding this process?

If you are looking to file for the H-1B visa after your completed OPT we advise you to either contact a local immigration lawyer or speak with the human resource department in the company who will be filing the H-1B visa with you.