F-1 then H1-B
About 1.5 million international students are currently in the U.S. Most of them entered on an F-1 visa. The largest number of them, about 420,000, are from India.
As you may already know, students must be enrolled full-time in an approved academic program to qualify for F-1 status. They must be proficient in English or enrolled in courses leading to proficiency. They must have sufficient funds available for self-support during the entire time. They must maintain a residence abroad which they have no intention of giving up. And they may not work off-campus in the first academic year but may accept certain on-campus employment.
After that first year, students may engage in three types of off-campus employment:
• CPT (Curricular Practical Training)
• OPT (Optional Practical Training)
• STEM OPT (Science, Technology, Engineering, and Mathematics Optional Practical Training extension)
Employment must be related to the student's area of study and must be authorized by the Designated School Official before any work is started.
Applying the basic points can be complicated, and if they are not applied properly there can be unfortunate consequences. For example, students must be extremely careful about any period of what might be considered unemployment when they are in OPT or STEM OPT.
Also, especially in the current environment, students must be careful about their social media content and anything that might possibly be considered by anyone in any way a threat to U.S. national security.
International travel while in F-1 status can involve some special challenges. For example:
• Even when the student is outside the U.S., they must be attentive to how many days of unemployment they are accruing — so they don't exceed the number of days allowed.
• Also, students must think carefully about the documents they should carry when traveling outside the U.S., especially now. If a student leaves without all the documents that might be necessary, they might not be able to get back in.
Of course, students talk with other students, and sometimes they share information that is not entirely accurate — and this can sometimes turn out to have severe consequences.
For example, suppose a student proceeds with everything as if there is no urgency. When his OPT starts, he does not carefully keep track of the unemployment days he is accruing, which are strictly limited under the law. He does not know when the limit is exceeded. He does not realize that he has now violated his F-1 status and that this is a serious matter — and he probably has friends who tell him not to worry.
He hears stories about people like him who did not promptly go back home when they should and were not promptly removed by the U.S. government. He even hears stories about some people like him who went home and then returned to the U.S. without being challenged at the border. But such good fortune cannot continue forever, especially in the current environment. The next time the person in this example travels outside the U.S. and then tries to re-enter, he will probably be detained at the airport — and immediately deported — and permanently barred from entering the U.S. again.
The point here is that failing to comply with the law — including parts your friends feel are not very important — will probably end badly. Consider talking to a lawyer before bad things happen.
Now let’s suppose that a student is in the U.S. with their F-1 status, and they are on track to getting a degree. They know all about the work authorization available to students, and they know that the work authorization is limited, it is temporary, it will come to an end at some point. Even though they have many other things to think about, smart students start thinking as soon as possible about possible next steps. They know that when their F-1 status ends — and their temporary work authorization ends — they will have to leave the U.S. And if they might want to stay in the U.S., they start considering possible next steps — the sooner the better.
Fortunately, there are options for those students to consider. And the most popular option is H-1B.
As you may already know, H-1B is a temporary work visa for foreign nationals who have at least a Bachelor's degree or its equivalent in a certain field. The H-1B employer's proposed job opening must require theoretical or technical expertise in that field.
And a common path for F-1 students is to look for and find a good employer willing to offer a good H-1B job — and willing to file an H-1B petition before the student's F-1 status ends. But the search for such a good employer is not always quick and easy. Many students make their OPT decisions in light of H-1B possibilities.
Because the H-1B program attracts large numbers employers and prospective employees (called "beneficiaries"), USCIS each year conducts an electronic registration process (a "lottery") to determine which employers are allowed to file H-1B petitions.
The number of H-1B visas issued through the lottery is limited to 85,000 each year. Of those, 65,000 are called "regular cap" — and a further 20,000 are called "advanced degree exemption" for prospective employees who have earned a U.S. Master's degree or higher.
H-1B employers are either "Cap Subject" or "Cap Exempt." Cap-Exempt employers include higher-education institutions and affiliated non-profit organizations; governmental or non-profit research organizations; and private Cap-Subject employers who intend to place the foreign worker at one of those Cap-Exempt entities.
Cap-Subject employers must register their prospective H-1B employees in the lottery opening in early March and closing in about the third week of March. The results of the lottery are declared in the last week of March. By the end of March, employers are notified which of their prospective employees have been selected, and those employers are given 90 days to file their H-1B petitions.
When someone becomes a beneficiary selected through the lottery while their F-1 status is still valid at least until April 1 of that year — and if their prospective employer timely filed a petition requesting a change-of-status for them — they are allowed to stay and work in the U.S. until October 1 of that year, until their status changes to H-1B. This is called a "cap gap extension." But there are limitations on the beneficiary's travel while the employer's petition is pending.
There are other possible paths to H-1B. For example, if someone is or will be a business owner, they can apply for an H-1B work visa — and they won't need an employer to apply for them. Of course, there are additional legal requirements when someone is both the owner and an H-1B employee, and it's a good idea to discuss this with a lawyer.
When someone obtains H-1B status, they are allowed to work in the U.S. and there is an additional benefit. H-1B is a "dual-intent" visa — so they can legally pursue permanent residency by applying for a Green Card without jeopardizing their employment status.
However, that path to getting a Green Card can take an extremely long time. But there are other options that can be considered. For example, an EB-5 investor visa can more quickly lead to a Green Card for them and their family members, regardless of employment or further education. Consider talking to a lawyer about all this.