F-1 Optional Practical Training v. H-1B: Some Issues

Optional Practical Training (OPT) is not separate from F-1 status, which means that when an overseas student has been authorized for OPT status, he or she has F-1 status as well. However, H-1B visa status is not related to OPT at all.

Once a student has obtained the EAD card, which permits employment throughout the OPT period, an overseas student will try to find a job in the 12 months period of OPT. In this period, the student can choose any employer, or even not work at all. He or she is permitted to change jobs relatively easily too during the OPT.

The OPT does have limitations, particularly as it is only offered for an initial 12 month period. This can be extended for a further 17 months. This differs typically from a student taking up employment through an H-1B visa status, as the sponsorship is fixed to one specific job and employer.

If there is a mismatch between the employee and employer the employee will have to get authorization from the United States Immigration and Citizenship Service, USCIS, before a change of employers can take place. Additionally, an H-1 B visa status holder might not be given the opportunity to be employed by any other employers unless USCIS authorization has been granted. If the H-1B holder wants to work for a new employer, the new employer has to file a new H-1B petition for him. So, if an H-1B visa holder loses his or her job because the company is reducing employee numbers then he or she no longer has the required status to remain in the U.S.

The USCIS may offer some leniency in this situation if the ex-employee quickly finds another position with a sponsoring employer. There is no set regulation but it is assessed on a case by case basis by the USCIS. Lapses in employment can take place with an OPT and the holder still maintains the required status to remain in the US for at least the 12 month stipulated period.

Is Changing from F-1 to H-1B status possible?

An individual on an F-1 status who has gained a specialty degree which is acceptable for an H-1B sponsorship may be eligible. An H-1B visa status is set up for temporary workers and they have to be employed in a listed specialty occupation on a temporary basis. An F-1 visa holder interested in becoming an H-1B visa status holder has to seek out a suitable employer who shows willingness to apply and file an H-1B petition on the F-1 visa holder’s behalf. Once the employment has been approved the F-1 visa is changed to an H-1B status allowing the employee to remain in the USA for up to six years.

What is the H-1B Cap Gap?

Normally, every new H-1B takes effect each year on October 1st. This date is when all recently approved H-1B visa holders are permitted to commence working for their employers. Normally, an OPT for an F-1 student will finish before October 1st as a 12 month OPT relates to the finish of a varsity year which is in June or July. If the student has been offered an H-1B visa sponsorship then his or her F-1 status will have expired before the compulsory October work start date. This time period, which occurs from the finish of OPT and the beginning of an H-1B visa status is called the “gap”. Fortunately, there is what is called a “cap-gap extension” in place to cover those transferring from OPT/F1 visa status to H-1B.

There are many more issues related to F1/OPT and H-1B that an experienced immigration lawyer can explain to you.

Return to "The H-1B Visa" to learn more.