Thinking about post-graduation in the United States as an international student can be very worrying and speculative. This article contains tips and information to ease your mind and direct you on the pathway to working in the United States after graduating from an undergraduate or graduate program.
Overview of F1 to OPT to H1B and F1 to H1B
After graduation, many students on the F1 visa aspire to adjust their status from F1 to the highly sought-after H1B status. To change from F1 to H1B, students can either change directly to H1B or take the F1 to OPT to H1B path. Many F1 students participate in OPT (see OPT article for further information) before applying for H1B. After graduating, participating in OPT gives F1 students a buffer phase to gain experience in their field of study while searching for an H1B sponsoring employer, required by the visa. Suppose a student participating in OPT wishes to consecutively stay in the United States after the twelve-month OPT or their STEM OPT extension. In that case, it is advisable to prepare and submit their application during their OPT. However, students may also apply for the H1B as an F1 without OPT.
The H1B visa is a nonimmigrant visa program that allows employers in the United States to hire foreign workers in specialty occupations. The H1B visa is reserved for professions that require theoretical and practical application of specialized knowledge along with at least a bachelor’s degree or its equivalent. The effective start date for approved petitions is always October 1 of the year your H1B petition is approved. H1B visa holders may:
- Work legally in the United States for three years allowing for a possible extension of an additional three years for a total of six years. In addition, in some cases, a person with a United States permanent resident application on file can extend H1B status beyond the standard six-year limit.
- Bring their spouse and children to the United States on an H4 visa.
- Travel in and out of the United States if a valid H1B status is maintained
- Apply for permanent residency in the United States, also known as a green card.
The H1B Visa Cap
Every year, the United States sets an H1B visa cap since so many students apply. For example, since 2004, the cap has been limited to 85,000 accepted applications. During the lottery selection phase, USCIS will first randomly select 20,000 H1B cases for students who possess a United States Master’s degree or higher from a qualifying non-profit or public higher education institution accredited by a nationally recognized agency. After, USCIS will randomly select 65,000 H1B petitions, of which 6,800 are reserved for citizens of Singapore and Chile since they are listed under the free trade agreement. Finally, any unused H1B visas from the Chile and Singapore pool are added to the next fiscal year.
Suppose USCIS receives more than 65,000 registrations to meet the standard cap and more than 20,000 registrations to meet the Master’s cap. In that case, USCIS will conduct two separate randomized electronic lotteries to identify the cap registration winners. The USCIS will first apply the random selection process to all cap registrations received to determine the initial 65,000 winners. Any Master’s cap registrations not selected in the first lottery will be eligible for selection in a separate H-1B Master’s cap lottery, effectively being granted two opportunities in the selection registration process.
Petitions Exempt from H1B Cap
A few ways to be considered H1B cap-exempt are if your United States Employer matches one of the following categories:
- Higher education institution
- A non-profit affiliated with a higher education institution
- Non-profit research or government organization
- Beneficiaries who will work in Guam or the Northern Mariana Islands
However, suppose you previously held H1B status but were not counted against the H1B cap because a cap-exempt employer employed you. In that case, you will be counted against the H1B cap unless you are eligible for another exemption.
Basic Overview of the H1B application process
First and foremost, you will always need a job offer from a sponsoring employer in order to apply for an H1B visa. The H1B petition is filed by your employer by which you, the H1B applicant, are the beneficiary. Your employer must be in good standing and prove to USCIS that you will be paid higher than the prevailing wage or the actual prevailing wage for the applicable occupation. Your employer will also need to prove that your employment will not harm the work conditions for the United States workers.
Once you have found a sponsoring employer, they will need to file your H1B registration on your behalf by the stated deadline. Currently, the registration start date for H1B applications for the year 2023 is not yet posted. USCIS states that the initial registration period for every year is open for a minimum of 14 calendar days each fiscal year. For example, applicants applying for 2022, the H1B registration process was from March 9 to March 25, 2021. Therefore, your employer should submit your H1B registration as soon as possible with respect the posted registration start date. This is done on the USCIS site and frequently done with assistance from an attorney. If you are selected in the lottery selection process, this means that your employer is authorized to file an H1B cap-subject petition. Therefore, you and your employer should ensure that you have all your necessary documents and forms for the petition prior to submitting your initial H1B registration.
Keep in mind that only your sponsoring employer may file your H1B petition. To do this, your petitioning employer MUST:
- As the employer, submit your H1B registration via the USCIS site on the first start date of the online registration process.
- If you are selected in the lottery process, you are approved to submit the H1B cap-subject petition (“change of Status”)
- Ensure that you have an approved LCA (Labor Condition Application) with the United States Department of Labor.
- Then, ensure that all required supporting documentation, appropriate payment (certain employers may pay more or less than others), and forms are properly submitted to the USCIS.
Suppose you have filed an H1B visa petition and your case is pending. In that case, you may be eligible for a cap-gap extension in which you can remain on F1 visa status where your work authorization and F1 status would otherwise expire until the H1B employment is approved. For F1 students whose period of authorized stay expires before October 1 and do not qualify for a cap-gap extension must leave the United States, or they may lose their status. Upon leaving the United States, students must apply for an H1B visa at a consulate abroad and enter the United States on H1B status if the petition is approved.
At The Law Office of Yifei He, PLLC, our lawyer has years of experience helping clients overcome a wide range of legal barriers. We can help you present the strongest possible case to USCIS, thereby maximizing your likelihood of success. With our attorney by your side, you can navigate this process with efficiency and confidence.