Author: Attorney Jian Joe Zhou (jzhou@hooyou.com)

For many STEM (Science, Technology, Engineering, and Mathematics) students studying in the U.S., how to extend their time in the U.S. to accumulate work experience after graduation is a crucial step in realizing their career dreams, and even obtaining employer support to apply for and secure a green card. OPT and the H-1B work visa are the two main pathways. However, when opportunities for both OPT and H-1B arise simultaneously, how to plan their use rationally becomes a challenge for many students.

Case Study: The "Sweet Dilemma" of OPT and H-1B

Ming is an F-1 student majoring in a STEM field, currently in his first year of OPT. Fortunately, he was selected in this year's H-1B lottery, which means if his H-1b petition is approved he will have the opportunity to work in the U.S. under H-1B status. However, Ming feels somewhat troubled because he still has two years of STEM OPT time left. He hopes to make full use of this STEM OPT period and delay the start of the 6-year H-1B status as much as possible. He is concerned that starting the H-1B status too early will waste his remaining STEM OPT time. So, can Ming "have his cake and eat it too," making full use of STEM OPT while retaining the H-1B opportunity? Is it possible to plan reasonably so that STEM OPT and H-1B can be seamlessly connected, allowing him to work in the U.S. for nearly 9 years?  The short answer is Yes.

Legal Perspective: The Compatibility of OPT and H-1B

From a legal standpoint, Ming's wished for goalsare entirely feasible. According to US immigration regulations, STEM OPT can be extended for up to 3 years, while the H-1B visa is valid for 6 years.  In calculating 6-yaer H-1b limitation, a person spent one day physical in the US with a valid H-1b I-94 is counted a day.   This means if plan well Ming can fully utilize the 3 years of OPT before activating his H-1B status, allowing him to work in the U.S. for nearly 9 years.

How to Achieve It: Two Ways to Activate H-1B Status

To achieve this goal, Ming can choose one of the following two methods to delay the activation of his H-1B status:

1. Activating H-1B Status Abroad: This is the most common method. The specific steps are as follows:

- H-1B Application Phase: After being selected in the H-1B lottery, when the employer submits the H-1B application and fills out Form I-129, the employer can choose the option of “notify consular overseas” option, rather than opting for a change of status within the U.S.

The H-1B petition process actually includes two parts: the H-1B qualification application and the application for a change of status within the U.S. The latter is an optional benefit. If the applicant does not choose this benefit at this time but instead opts for consular processing (CP) to complete the subsequent steps, it will not affect the acquisition of the H-1B qualification.

- Start Date of H-1B Status: This is determined by the date Ming enters the U.S. with an H-1B visa. Upon receiving a valid H-1B I-94, Ming activates his H-1b status and starts the time counting toward the six year H-1b period Although Ming holds an H-1B approval notice with a starting date before this, because he did not request change of status, he was still in F-1 OPT student before his first entry into the US with a valid H-1b visa.

2. Submitting an H-1B Amendment Application Within the U.S.: This method is suitable for Ming if he wishes to change his status directly within the U.S. after his OPT ends. The specific steps are as follows:

- During OPT: Ming can continue working for his employer under F-1 status until his OPT is about to expire.

- H-1B Amendment Application: Before his OPT expires, his employer can submit an H-1B Amendment application for Ming, requesting a change of status from F-1 to H-1B.

- Change of Status: Once the H-1B Amendment application is approved, Ming will receive an approval notice with an I-94, and his status will change from F-1 to H-1B, allowing him to continue working in the U.S.

Important Considerations: Maintaining the Validity of F-1 Status

Regardless of which method Ming chooses to activate his H-1B status, he must promptly contact and communicate with the relevant school officials to explain his situation in detail, thereby maintaining the validity of his SEVIS (Student and Exchange Visitor Information System) status and make sure the school keeps his F-1 status valid even after H-1b petition is approved (without change of status in the H-1b approval notice). 

In practice, some school officials may mistakenly believe that a student has automatically changed status due to incomplete understanding of policies or poor communication, inadvertently closing the student's F-1 status record in the SEVIS system, which could lead to identity verification issues and a series of unnecessary troubles.

Reasonable Planning: The Advantages of 9 Years of Work in the U.S.

Through reasonable planning, Ming can work in the U.S. for nearly 9 years (3 years of OPT + 6 years of H-1B). This period not only helps him accumulate rich work experience but also lays a solid foundation for his future career development and green card application. Additionally, long-term work experience will help Ming build a broader network and resources in the job market, accumulating wealth for his future life.

With the evolving H-1B policies and potential shifts in immigration regulations under the new administration, the 2025 H-1B application process has become more complex and unpredictable; therefor it is crucial to work with an experienced immigration attorney to navigate the process.

A knowledgeable attorney can help applicants understand the latest policies, guide employers in preparing strong and compliant applications, and mitigate risks associated with policy uncertainties. For employers seeking to attract international talent and individuals pursuing career opportunities in the U.S., seeking professional legal assistance is a key step to ensuring a successful H-1B application.

About Attorney Jian Joe Zhou

Attorney Jian Joe Zhou is the Managing Partner and Co-Managing Attorney at Zhang & Associates, PC. With over 20 years of experience in business immigration law, he has successfully handled thousands of immigration cases, including complex H-1B petitions for various industries and professional backgrounds.

For more information about legal services, please contact Attorney Jian Joe Zhou at jzhou@hooyou.com.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(02/13/2025)