International Student to Temporary Worker – Dealing with the Transition

(by Emily Neumann, Attorney at law This email address is being protected from spambots. You need JavaScript enabled to view it. )

International students in the United States on F-1 visas often transition to an H-1B visa following graduation. A period of training called Optional Practical Training (OPT) available for up to 29 months after completion of the degree aids the student in obtaining real-world experience and helps with the timing of the H-1B visa application. For those applying for an H-1B visa for the first time, the visa will usually have an effective start date of October 1st, which coincides with the beginning of the government’s fiscal year. While the visa begins in October, the filing window opens six months earlier, in April. The delay between the time of filing and the effective start date can create issues for a student wishing to travel, change jobs, get married, or otherwise deal with life in general.

In the past, graduation timings lead to the inability of students to maintain status between April and October. This gap in status created by the H-1B filing cap is referred to as the Cap Gap. USCIS created a temporary fix for the problem by providing a Cap Gap extension of status for students with a pending or approved H-1B petition. This meant that a student whose OPT period expires between April and October would obtain an automatic extension of the OPT through September 30th if an H-1B petition was filed on their behalf requesting a change of status. In addition, the creation of a 17-month extension of OPT for graduates with degrees in Science, Technology, Engineering, or Math (STEM extension) provided additional relief from the H-1B cap.

Here are some of the most common questions regarding the transition period between F-1 and H-1B status:

Q: My employer filed an H-1B petition on my behalf, and it was approved as a change of status. Can I change employers before October 1st?
A: Yes, but your new employer will need to file a new H-B petition requesting a change of status again. Because you were already counted in the H-1B cap when you obtained the earlier approval notice, you do not need to wait for the next filing window to open in April.

Q. What if my H-1B petition is still pending, can I also change employers?
A. This would not be recommended. If you change employers before the H-1B petition is approved, your pending H-1B could be withdrawn. In this situation, you would no longer be considered “counted” in the H-1B cap.

Q. My H-1B petition is approved as a change of status, but my OPT is valid beyond October 1st. Can I continue on my OPT after October 1st?
A. No, the H-1B automatically becomes effective on October 1st and the OPT is no longer valid. If you want to continue on OPT and are no longer interested in the H-1B status, you would need to request your employer to withdraw your approved H-1B before October 1st and inform you school.

Q. My H-1B is pending, can I visit my home country for summer break?
A. Technically yes, but this is not recommended. When you leave the country while a change of status is pending, your request to change status is considered to be abandoned. Even if your H-1B were to be approved later on, you would need to wait until October 1st before you can return to the U.S. and must obtain the H-1B visa stamp.

Q. What if my H-1B change of status is already approved, can I visit my home country and return to the U.S. before October 1st?
A. If you have a valid F-1 visa stamp, an unexpired OPT card, and an I-20 endorsed for travel, you technically can leave and come back in F-1 status before October 1st without impacting your approved H-1B according to a 2004 advisory letter from USCIS. However, it is still best to avoid travel in this situation. The advisory letter is not binding on officers at the port of entry. Also, while you are out of the country, you may be considered to be unemployed for purposes of the OPT rules on unemployment. Finally, some students have faced heavy scrutiny at the port of entry upon their return and were refused admission back into the country.

Q: Can I travel during the Cap Gap extension using my expired OPT card?
A: No. Although the Cap Gap allows you to remain in the U.S. and continue working after your OPT period expires, it does not allow you to travel. You would lose the Cap Gap protection by leaving the country and would need to remain outside the U.S. until October 1st.

Q: I am on OPT with an approved H-1B. Can my spouse apply for an F-2 visa to join me?
A: It is recommended for your spouse to apply for an H-4 visa and travel to the U.S. on or after October 1st.

 

Emily Neumann has practiced immigration law in Texas since 2005, representing both employers and immigrants. Neumann writes a blog on immigration law (immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news. She is a partner in Reddy & Neumann, P.C. in Houston and Dallas.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.