The Light Went Out On My Star: Don't Lose F-1 Employees While Waiting On H-1B Approval

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It is common for companies to hire college students and plan to continue their employment after graduation. Increasingly, many foreign college students are in the United States on F-1, student visas and receive 12 months of work authorization upon graduation through Optional Practical Training (OPT). While this practice helps employers secure rising stars, failure to preserve F-1 status and OPT work authorization while waiting for H-1B (the main visa used by U.S. employers to hire foreign workers) approval can cause problems for the employer and employee.

To continue working beyond the OPT expiration date, a petition to change status from F-1 to H-1B must be filed before the OPT expires. Due to the H-1B cap of approximately 65,000 available slots with an additional 20,000 available for foreign nationals with masters degrees or higher from a U.S. university, a petition subject to the H-1B cap cannot have an employment start date earlier than October 1. However, OPT work authorization normally expires in the summer, leaving a gap in employment authorization from the time the OPT expires and October 1. This gap is referred to as "cap-gap." Employers have some options to keep these rising stars employed with some advance planning.

When Should the F-1 Planning Begin?

Generally, an employer may not submit an H-1B petition to the U.S. Citizenship and Immigration Services (USCIS) more than six months in advance of the employment start date. For H-1Bs subject to the cap, the petition cannot be filed before April 1. Because of the limited number of H-1B petitions accepted each fiscal year, an employer subject to the H-1B cap should file its H-1B petition on April 1. After April 1 all of the H-1Bs will be likely exhausted based on the number of H-1B filings over the last few years. Thus, we recommend starting advance planning now and beginning the H-1B application process by late February, to allow sufficient time to prepare and file the H-1B application on April 1.

It's Filed, Anything Else?

Once the H-1B petition is accepted by USCIS, the employee can obtain a cap-gap extension of OPT, working through his or her school to obtain the necessary approval. To maintain OPT during the cap-gap the student must provide the Designated School Officer with the H-1B filing receipt and then the approval notice. As the cap-gap work authorization extension expires on September 30, if October 1 is approaching and the H-1B petition has not been approved, a request to USCIS for premium processing is recommended to minimize the risk of a true gap in employment.

Topics:  F-1, Foreign Workers, H-1B, Visa Caps, Visas

Published In: Immigration Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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