Many international students who attend school in the United States in F-1 status seek U.S. employment upon graduation. Most commonly, they seek employment in H-1B status.
Many international students who attend school in the United States in F-1 status seek U.S. employment upon graduation. Most commonly, they seek employment in H-1B status. There can be several tricky timing issues involved in this transition.
Upon completion of a course of study, an F-1 student is usually eligible for one year of post-completion employment authorization called Optional Practical Training, or OPT. Students may apply for post-completion OPT employment authorization up to 90 days before the end of their program and up to 60 days after the end of their program on Form I-765. Because USCIS processing times vary and because there is a 5 month window in which students can apply for OPT, the OPT start date will vary from one student to the next and, correspondingly, so will the end date. The 1 year period of employment authorization begins on the date the card is issued and ends on the card's expiration date. The employment authorization card on which OPT is documented is often referred to as the “EAD” card, which stands for Employment Authorization Document.
The 1-year OPT period is crucial to graduates. Since the hiring employer does not need to file anything with USCIS in order to hire a graduate who has OPT, the hiring process is straightforward for the employer. This provides the graduate with time to establish herself as a valuable employee such that the employer will hopefully be willing to do the necessary work, and foot the costs, for H-1B sponsorship.
If the position in which the graduate is working is subject to the H-1B cap, as most positions are, then the timing of the H-1B filing is critical. All H-1B cap cases have to be filed during the first five business days of April for consideration in the cap. If the petition is approved, the employment start date for the H-1 will be October 1st.
Usually, and ideally, H-1B employers file the petitions requesting a change of status on behalf of the F-1 student. However, students are only eligible to change status if they are able to maintain their F-1 status up through the October 1st start date. Students can maintain F-1 status by:
- Having an OPT EAD card which expires on or after October 1st: This is the most straightforward scenario. In this case the student can keep working right up through October 1st and the H-1B status will automatically take effect on October 1st.
- Having an OPT EAD card which expires within 60 days before October 1st: This will allow the student to keep working only until the EAD card expires. However, because there is a 60 day grace period following expiration of F-1 status, the student may remain in the United States during that 60 day period. There will thus be a break in employment between the OPT expiration date and October 1st but the graduate will not have to leave the United States during that break.
- Qualifying for a “Cap Gap” Extension:
- What is Cap Gap? The Cap Gap provision was added to the F-1 regulations in 2008. It provides that any graduate who is maintaining F-1 status in the United States and on whose behalf a petition for change of status to H-1B is filed under the cap, is eligible for automatic extension of status and employment authorization so long as his OPT is unexpired at the time the H-1B petition is filed. Such employment authorization shall cease upon the rejection, revocation or denial of the H-1B petition. As a practical matter, this provision is only needed where there is a gap between the student's OPT expiration date and the October 1st start date of the H-1B petition.
- When does Cap Gap extend my F-1 status and employment authorization? So long as the graduate's OPT card remains valid as of the H-1B petition filing date (during the first five business days of April), the cap gap will automatically kick in once the petition is filed. It will permit the student to continue working through October 1st, or until the H-1B petition is rejected, denied or revoked. In order to document this employment authorization (as is necessary for the OPT employer's I-9, the student must obtain a new Cap Gap I-20 Form from the school from which he graduated. Typically the school will request proof of the H-1B filing in order to issue the new I-20. This would usually consist of the H-1B Receipt Notice on Form I-797. However, if the new I-20 is needed before a Receipt Notice has been issued (e.g., because the student's OPT expires in April or May, before USCIS has completed its random selection process for the H-1B cap, and it is not yet clear whether the graduate's petition has been accepted into the H-1 lottery), the student may present an attorney and/or employer letter confirming submission of the H-1B petition together with Fed Ex tracking information confirming delivery of the petition to USCIS. If the case then does not make it into the lottery and is rejected, the Cap Gap authorization will cease upon rejection of the petition, and the student's 60-day F-1 grace period will begin.
- When does Cap Gap extend just my F-1 status and not my employment authorization? In some cases, a student's OPT will expire during the 60 day period immediately preceding the filing of the H-1B petition, and the student will be in his F-1 grace period when the cap case is filed. In that case, the student is still eligible for Cap Gap extension of his duration of status, or lawful period of stay in the United States, and that will continue through October 1st or the rejection, revocation or denial of the H-1B petition; however, it does not extend the student's employment authorization since the authorization was not in effect as of the filing date of the H-1B petition. The student thus has the choice of remaining in the U.S. through October 1st without working, or leaving the United States and reentering on October 1st with an H-1B visa once the petition is approved and the individual is authorized to start working in H-1B status.
In closing, it should be noted that some F-1 graduates are eligible for an additional 17-month period of OPT in limited circumstances. This period is known as the STEM extension and is only available to students who:
- Graduated with a STEM degree. STEM stands for Science, Technology, Engineering and Mathematics. ICE maintains a list of STEM degrees which qualify for this additional period of employment authorization; and
- The employer for which the graduate works on his OPT must be a participant in the voluntary E-Verify program.
Students who are eligible for, and obtain, a 17 month STEM OPT extension may also obtain a Cap Gap OPT extension at the conclusion of their STEM OPT if they are otherwise qualified, as outlined above. Thus some students may remain in F-1 status and using OPT for 2-3 years following graduation.
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