Timing Issues for Foreign Students Seeking H-1B Employment

If you plan to work on an H-1B visa, you'll need to plan well in advance.

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If you are a foreign student seeking employment in the U.S. as a temporary specialty worker, timing the filing of your H-1B petition is, arguably, the most important aspect of changing your status from F-1 to H-1B.

The H-1B fiscal year begins October 1 of each year – meaning that the State Department then offers up a fresh supply of new H-1B visas, which are quickly snapped up by eager applicants. To try to ensure you’re not left without H-1B status, U.S. immigration law allows you (or literally, your employer) to file your petition six months prior to the requested start date of your H-1B approval. The most common requested start date is October 1, to coincide with the start of the new fiscal year. Such petitions can be filed as early as April 1for the upcoming fiscal year. In other words, if your employer was to file a petition for you on April 1, 2014, and it was approved and a visa was available, you’d be able to start work on October 1, 2014.

In the present H-1B climate, in which there are a shortage of H-1Bs available, filing your H-1B petition in April is not just an option but an actual necessity. The numerical cap for H-1B petitions was met within the first week of April in 2013. If you fail to take such timing considerations into account, you might lose out on your chance for an H-1B visa this year.

How the Numerical Cap on H-1Bs Granted Each Year Works

Currently, United States Citizenship and Immigration Services (“USCIS”) can approve only 65,000 cases of new H-1B applicants who hold the equivalent of U.S. bachelor’s degrees, and 20,000 for those who hold advanced U.S. degrees. (Many other applicants are not subject to these limits, widely known as the H-1B cap, as described in “When the H-1Bs Run Out: Alternative Visas and Strategies.”)

As an example of the degree by which demand for H-1B regularly exceeds supply, one need only look at the very first week in April 2013, when USCIS received a total of 124,000 H-1B cap-subject H-1B filings. This was the very first week that people could file to change their status to H-1B for fiscal year 2014, and their employment start dates could be no earlier than October 1, 2013.

USCIS then used a lottery-style selection process to choose which applicants could actually go forward to receive an H-1B visa. The rest were deemed rejected by USCIS and had to seek alternatives to H-1B status.

Begin Timing Your Change of Status to H-1B While in School

Don’t wait for graduation: You should begin to time the filing for your change of status while you are still in school. Many students wait too long to seek advice, and find that, even if they’ve secured a U.S. job offer, they’re at risk of falling out of status or having to return home because the employer can't move quickly enough this late in the game.

International student and scholar offices on campus generally have information sessions on changing from F-1 to H-1B. Take advantage of these sessions and schedule appointments with your international student and scholar services office on campus regularly.

Once you have a willing employer, you’ll want to gather your required documentation and information at least two months prior to the date your employer intends to file the H-1B visa petition for you. In fact, the month of December is when most attorneys begin the process of preparing H-1B cap cases to be filed in April.

Check When Your F-1 Status Will Actually Expire

When you entered the United States on an F-1 visa, you were admitted with an expiration of “duration of status.” Your I-94 entry document will show this, with the letters “D/S” under the entry stamp. U.S. immigration law defines “duration of status” as the period required to complete your studies, plus one year of optional practical training (OPT), plus 60 days. (For a description of optional practical training, see Nolo’s article, “When F-1 Students Can Work in the U.S.”)

Sometimes, if a student chooses not to do OPT after school and instead completes Curricular Practical Training (“CPT”) while in school, he or she will have only 60 days after completing the studies. Again, it is important to discuss your status and review your I-20 with advisers in the international student office at your university.

How Long Your OPT Will Last

Your school calendar does not match up well with the U.S. H-1B calendar. If you end your studies in June, your OPT will likely be valid only until June of the following year. You will then have 60 days after the expiration of your OPT to remain in the United States in valid legal status, bringing you to August. As you can see, you will still have a gap in your status between August and October.

Fortunately, the U.S. Department of Homeland Security has issued a regulation that will extend your status through these two months and may extend your employment authorization. In order to receive this benefit, however, your employer will have to have filed your H-1B petition before your F-1 status expired and you will have to receive H-1B approval from USCIS before the October 1 start date.

Possible Strategy: File H-1B Petition Prior to Using OPT

Every year, many H-1B petitions are ultimately rejected by USCIS because of an insufficient supply of visas – the cap had been reached. Given this reality, you might consider asking your employer to file for your H-1B during the year prior to when your OPT runs out. Although this will cut short your total allowed time on OPT because your H1B will begin before you have used the one year maximum time on OPT allowed under law, it will also increase the odds of your being able to change your status from F-1 to H-1B and remain in the United States to seek options for permanent residency.

If you are unable to obtain an H-1B the first time around, you are always able to file a petition for the next fiscal year. In the meantime, you may have to return to your home country or seek alternatives to the H-1B so that you can continue to work.

Risks of Falling Out of Status

Whatever happens, you want to avoid spending time in the U.S. with no legal status, which can have severe consequences and impact your ability to stay longer or return in the future. (See “Consequences of Unlawful Presence in the U.S. -- Three- and Ten-Year Time Bars.”)

Be sure to develop a clear understanding of when your F-1 will ultimately expire and whether you are eligible to continue working after your status expires and before your H-1B start date. Consult an attorney if you have further questions.

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