The Light Went Out On My Star: Don’t Lose F-1 Employees While Waiting On H-1B Approval

It is common for companies to hire college students and plan to continue their employment after graduation. Increasingly, many foreign college students are in the United States on F-1, student visas and receive 12 months of work authorization upon graduation through Optional Practical Training (OPT). While this practice helps employers secure rising stars, failure to preserve F-1 status and OPT work authorization while waiting for H-1B (the main visa used by U.S. employers to hire foreign workers) approval can cause problems for the employer and employee.

To continue working beyond the OPT expiration date, a petition to change status from F-1 to H-1B must be filed before the OPT expires. Due to the H-1B cap of approximately 65,000 available slots with an additional 20,000 available for foreign nationals with masters degrees or higher from a U.S. university, a petition subject to the H-1B cap cannot have an employment start date earlier than October 1. However, OPT work authorization normally expires in the summer, leaving a gap in employment authorization from the time the OPT expires and October 1. This gap is referred to as “cap-gap.” Employers have some options to keep these rising stars employed with some advance planning.

When Should the F-1 Planning Begin?

Generally, an employer may not submit an H-1B petition to the U.S. Citizenship and Immigration Services (USCIS) more than six months in advance of the employment start date. For H-1Bs subject to the cap, the petition cannot be filed before April 1. Because of the limited number of H-1B petitions accepted each fiscal year, an employer subject to the H-1B cap should file its H-1B petition on April 1. After April 1 all of the H-1Bs will be likely exhausted based on the number of H-1B filings over the last few years. Thus, we recommend starting advance planning now and beginning the H-1B application process by late February, to allow sufficient time to prepare and file the H-1B application on April 1.

It’s Filed, Anything Else?

Once the H-1B petition is accepted by USCIS, the employee can obtain a cap-gap extension of OPT, working through his or her school to obtain the necessary approval. To maintain OPT during the cap-gap the student must provide the Designated School Officer with the H-1B filing receipt and then the approval notice. As the cap-gap work authorization extension expires on September 30, if October 1 is approaching and the H-1B petition has not been approved, a request to USCIS for premium processing is recommended to minimize the risk of a true gap in employment.