A Guide for University Graduates: Moving From OPT to H-1B Status

By: The Chander Law Firm, P.C.

The transition from student life to work life can be daunting, especially if you are an international student. Foreign nationals graduating from American universities need to understand the complexities of United States immigration law when moving from school to work. This guide is meant to give individuals working on OPT status a general understanding about moving to H-1B status.

F-1 Status and the OPT Program

Many foreign nationals attend universities in the United States seeking bachelor’s, master’s, and other graduate degrees. These students attend colleges under F-1 nonimmigrant status. F-1 status allows qualified foreign nationals to enter the United States to pursue a course of study at a college, university or other approved learning institution.

A component of F-1 status is the opportunity for students to obtain practical training. This period of training is known as optional practical training or OPT. Prior to rule changes made in 2008, a student was required to complete any OPT time within 14 months of completing an academic program. The former rules also limited OPT time to a maximum of 12 months. New regulations allow individuals to hold OPT status for a longer duration. These rules will be discussed in detail below.

Foreign nationals working on OPT often receive offers of employment beyond their time on OPT status. In order for the foreign national to continue working for a United States employer after completing OPT, the foreign national must transition to an employment based nonimmigrant status like H-1B. It is important to know about H-1B status and the regulations controlling change of status from OPT to H-1B.

H-1B Program for Specialty Occupation Workers

The H-1B program allows United States employers to hire foreign nationals to work in specialty occupations. A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge. It also requires at least a bachelor’s degree or higher in the specific specialty as a minimum for entry into the occupation. Specialty occupations include positions requiring bachelor’s degrees in computer science, engineering, and business. A foreign national may work temporarily on H-1B status for a period of up to six years.

H-1B petitions are generally subject to an annual cap of 65,000 visas each fiscal year. An additional quota 20,000 H-1B visas may also be available for individuals who graduate with master’s degrees or higher from United States institutions of higher learning.

Cap subject H-1B visas must follow strict filing timelines. The annual quota of H-1B visa numbers are released on October 1st of each year, which is the start of the federal fiscal year. The application period for each fiscal year opens on April 1st of preceding fiscal year. For instance, employers seeking to hire H-1B employees starting work on October 1, 2011 may file begin filing applications on April 1, 2011.

In the past, students on OPT had to be conscious of filing timelines when moving to H-1B status. An interim final regulation issued in 2008 created more flexibility for students on OPT to transition to H-1B status. These changes include automatic extensions of status for OPT holders moving to H-1B status. These changes also allow for an additional 17 month extension of OPT status for science, technology, engineering, and mathematics majors.

Cap Gap Relief: Automatic Extension of OPT Time

Foreign nationals faced falling out of lawful status during the period between OPT expiration and the start of H-1B status before “cap-gap” relief regulations were implemented. Falling out of status would prohibit the foreign national from obtaining H-1B status without obtaining an H-1B visa stamp at a United States consulate abroad.

New regulations provide for automatic extension of OPT status if an application for H-1B status is timely filed. A timely filed application is any H-1B petition filed while H-1B visa numbers remain available and the foreign national remains in authorized duration of status. This includes any period of time on F-1 status, OPT status, and the 60 day departure period (“grace” period) available to F-1 and OPT status holders. If an H-1B petition is rejected due to a shortage of H-1B numbers, the OPT cap-gap extension will also be revoked.

The extension of OPT status is automatic. In order to obtain proof of the cap-gap extension, the foreign national must notify the designated school official (DSO) with proof of a timely filed H-1B petition. The DSO should provide the foreign national an I-20 showing extension of status.

Extensions of OPT for STEM Graduates

New regulations also created a 17 month extension of OPT status for foreign nationals graduating with majors in science, technology, engineering, and mathematics (STEM). The extension is only available for foreign nationals working for employers that participate in the E-Verify federal employment verification system.

The DSO must certify that the foreign national graduated with a degree falling under the STEM Designated Degree Program List. The complete list is available at http://www.ice.gov/sevis/stemlist.htm and includes:

actuarial science, computer science (except data entry/microcomputer applications), engineering, engineering technologies, biological and biomedical sciences, mathematics and statistics, military technologies, physical sciences, science technologies, and medical scientist

The employer must also be registered under the E-Verify program in order for a foreign national to benefit from the 17 month STEM extension. E-Verify is an electronic system allowing employers to verify the valid working status of new hires. Participation in the program is generally voluntary. Employers participating in federal contracting and employers located in certain states may be required to participate in the E-Verify program.

The 17 month STEM extension is not automatic. The OPT holder must receive a recommendation for extension from the DSO. After receiving the recommendation, the OPT holder must file an application for employment authorization prior to the expiration of OPT status. Once the application has been properly filed, OPT status will automatically be extended for up to 180 days to allow for adjudication of the application.

The Chander Law Firm is Ready to Assist

Hire immigration counsel with the expertise to guide you through the transition from OPT to H-1B status. Contact The Chander Law Firm to represent you today.

The Chander Law Firm, P.C.
3102 Maple Ave, Suite 450
Dallas, Texas 75201
(888) 310-4044
http://www.chanderlaw.com



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