Bridging the Gap Between F-1 and H-1B Status

How the law can help you avoid falling out of legal status between the end of your time on an F-1 and the beginning of your time on an H-1B.

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It is quite common for F-1 students to find that their F-1 status will expire before their H-1B status becomes valid. If you are in such a position, you may be eligible for an automatic extension of your F-1 status. Let’s look at how to take advantage of this possibility.

By When a Student’s H-1B Petition Needs to Be Filed

F-1 students whose employers file an H-1B petition on their behalf within certain time limits and request a start date of the following October 1 (the first day of the upcoming fiscal year) will receive an automatic extension of their status. (This comes from a U.S. Department of Homeland Security (DHS) regulation issued in April 2008.)

To be eligible, your employer must file the change of status prior to the expiration of your F-1 status. You probably won’t find this expiration date written down anywhere. When you entered the United States on an F-1 visa, the Customs and Border Protection officer who admitted you probably put the letters “D/S” on your entry stamp – or, if you were admitted in 2013 or thereafter, would have entered this notation into a computer system, which you can find on your online I-94.

D/S stands for “duration of status.” U.S. immigration law defines this as the period required to complete your studies, plus one year of practical training, plus 60 days. Therefore, in order to qualify for the automatic extension, you must file your H-1B petition during this period of time. If you are uncertain when your F-1 status expires, consult with your international student services office.

Your employer must also request an October 1 start date, to conform with the availability of a limited supply of H-1B visas at the beginning of the fiscal year, which begins on October 1. However, employers are allowed to file H-1B petitions six months in advance of the requested start date of your H-1B status. Since there has been a shortage of H-1B visas in recent years, most employers of H-1B workers apply in April for an October 1 start date.

If you wish to be eligible for the automatic extension of your F-1 during the “gap” between your F-1 status and H-1B, your employer must request the October 1 start date. You must also request a change of status on the actual I-129 petition. There will be a question on the I-129 form that asks which action should be taken. Be certain the “change of status” box is selected on your form.

Finally, your employer must file the petition within the period of time that USCIS accepts H-1B petitions. This means that, if USCIS announces that it is no longer receiving H-1B petitions for a given fiscal year, an employer cannot send in a petition on your behalf for the sole purpose of extending your F-1 status.

For How Long the Automatic Extension Will Be Valid

Once your employer has filed an H-1B petition for you , your status will be automatically extended while USCIS reviews your case and makes a decision.

If USCIS approves your H-1B petition with an October 1 start date, your automatic extension will be valid through September 30, which means you will continuously maintain lawful status in the United States during the “gap” period between your F-1 and H-1B.

If USCIS rejects, revokes, or denies your H-1B petition, you will enjoy a 60-day grace period after USCIS issues its decision. During those 60 days, you are expected to prepare for departure from the United States. An exception to this 60-day rule would be if USCIS’s reason for denying your H-1B was that you failed to maintain proper F-1 status, in which case your status would expire on the date shown on the USCIS rejection notice.

When Students May Work During the “Gap” Period

F-1 students are eligible for Optional Practical Training (OPT) after completing their studies. If you are approved for and working on OPT when your employer files your H-1B petition, then you will also be able to continue working during the automatic extension period.

If you are a student who has received a degree in science, technology, engineering, or mathematics (STEM), you are eligible to extend your OPT status 17 months beyond the normal one year. You can apply for the STEM OPT extension during the gap period, which may be a good idea as a back-up plan the H-1B petition.

Obtaining Proof of Extended Status

Although the DHS regulation automatically extends your status, you will need to make an appointment with your school’s international student services office or designated school official (DSO) to obtain documentation of your continued status. Bring evidence of the H-1B filing with you to the appointment.

Evidence of the H-1B filing includes a copy of the petition, a courier label or receipt, or a certified mail receipt. Your DSO will then issue an I-20 with the extension valid through June 1. If USCIS accepts your H-1B petition for processing, you will need to make another appointment with your DSO and take a copy of your USCIS receipt notice. At this point, your DSO will issue a new I-20 with the final extension.

by: Cheryl Geiser

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