Transitions from F-1 to H-1B

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.

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 the arts.

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.

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.

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. 

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. 

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. An online registration process begins in early March.  At the end of March, employers are notified if their employers were picked in the lottery by April 1 and they can then begin filing the petitions. 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.

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.

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. 

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. 

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. 

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

OIAP does not provide advice on H-1B issues. Because there are many different ways of interpreting immigration laws, it is important for you to address any questions to your current or prospective employer. 

Explore your H-1B options as early as possible. Because most employers are subject to the cap, they need to submit an H-1B registration in early March or shortly thereafter in order to enter into the lottery. It is important to discuss this option with your employer well in advance of March 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. 

• Homeland Security - H-1B Status and the Cap Gap Extension