Issues Relating to F-1 and OPT
Optional Practical Training (OPT) allows foreign students in F-1 status to legally work as part of their educational training programs. Because OPT involves employment with a U.S. company or institution, this status is often conflated with the H-1B visa, another nonimmigrant work classification. Of course, the H-1B is an entirely different status with its own rules and limitations, and so we explore in this article issues related to F-1 visas, OPT, and H-1Bs.
A brief introduction to OPT and the lawful employment it allows is first in order. Generally speaking, a foreign student can obtain an employment authorization document (EAD) that will allow him to work during his OPT period. During this time, the student can work for any employer, or for none at all, and can change jobs easily. Further, in the event an alien on OPT is laid off, she may still have time to find another job without losing status.
OPT typically lasts for a maximum of 12 months per educational level, though some extensions are granted for the fields of science, technology, engineering, and mathematics, or STEM fields. As a general rule, an alien can remain in the U.S. in H-1B status for a maximum duration of six years, although some exceptions apply. The difference in maximum allowable time is often a prime incentive for a student to change status from F-1/OPT to H-1B.
Changing from F-1 to H-1B
An individual in F-1 status whose field is classifiable as a specialty occupation is permitted, assuming the underlying requirements are met, to petition for H-1B status. In the H-1B context, a specialty occupation is defined as one requiring the theoretical and practical application of a body of highly specialized knowledge and necessitating a bachelor's degree or higher (or its equivalent) in the associated field as a minimum for entry into the occupation in the U.S.
If the above is accounted for, then the subsequent process is straightforward. The first step for an F-1 holder is to find a U.S. employer willing to file an H-1B petition on his behalf. If the F-1 holder is given a job offer, the employer then files the petition for the alien, and if the application is approved, then the alien is granted H-1B status.
The degree of flexibility an F-1 student enjoys with respect to employment during OPT is not the case for H-1B holders, who must work specifically for their H-1B-sponsoring employers. More bluntly put: an H-1B holder is prohibited from working for employers without authorization from U.S. Citizenship and Immigration Services (USCIS). As such, if an H-1B holder wants to work for a new employer, the new employer has to file a new H-1B petition for him. Additionally, if an H-1B holder is laid off, she immediately loses lawful status.
The Cap-Gap Extension
New H-1B statuses take effect at the start of every fiscal year, i.e. October 1, and H-1B holders are eligible to begin working for their petitioning employers on this date. It’s often the case, however, that an F-1 student’s OPT period ends before October 1, usually in June or July, along with the student’s F-1 status. Accordingly, there is a period of several months during which the student loses both employment authorization and valid status. This period between the end of OPT and the potential beginning of H-1B status is commonly referred to as the “gap.” Fortunately, there is a “cap-gap extension” to address this very issue.
Simply stated, if your H-1B petition was filed before your OPT expired, and your H-1B status is slated to begin on October 1, you will be covered by the cap-gap extension and retain valid status until the H-1B adjudication process has finished. Once your H-1B petition is filed, you should plan a visit with the Designated School Official (DSO) of your institution with evidence of your H-1B case-filing receipt, i.e. Form I-797, Notice of Action, from USCIS. The DSO will then issue a cap-gap I-20 memorializing the extension of your F-1 status.
Conveniently, you can continue working throughout this time, even if your H-1B petition is still pending after October 1. However, if your H-1B petition was filed during the 60-day grace period after your OPT expired, then while you can legally remain in the U.S. and wait until your H-1B petition is adjudicated, you will not be permitted to work. Additionally, note that you cannot travel abroad and return by way of F-1 status during the cap-gap extension period. If you must travel outside the U.S., you will have to apply for an H-1B visa and enter no more than 10 days before the start of your employment (but this assumes your H-1B application is approved).
In the event USCIS denies your H-1B application, you will have the standard 60-day grace period from the date of the denial notice before you are required to leave the U.S.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
Updated 05/08/2017