What is H-1B?

Many students are interested in pursuing a further career in the United States after Optional Practical Training (OPT). The most frequent next step for a student on OPT would be to apply for H-1B with a sponsoring employer.  F-1 status is for people whose primary purpose is study, while H-1B is for people whose primary purpose is employment in a particular field.

H-1B is a nonimmigrant visa for temporary employment or a “working visa” for a specialty occupation. To apply for H-1B you will work with your employer (and most likely an immigration attorney) to submit an application to U.S. Citizenship and Immigration Services (USCIS).

How to apply for H-1B?

Once a student has been offered a position with an employer who is willing to petition USCIS for an H-1B, the employer will submit simultaneous applications to the U.S. Department of Labor and USCIS. These applications are designed to ensure that the employer, position, and employee meet the necessary criteria. These applications are quite complex, so it is advised that employers work with an immigration attorney.

APPLICATION TIMELINE

H-1B status is limited by a “cap” each fiscal year. This cap applies to employers in any category besides nonprofit or higher education. If your employer is subject to the cap:

  • April 1 marks the opening of the H-1B cap filing season, when U.S. Citizenship and Immigration Services (USCIS) begins accepting petitions for H-1Bs for the coming fiscal year.
  • The federal fiscal year runs from October 1 to September 30. For H-1B hires subject to the cap, work authorization always begins on October 1.

If you are subject to the cap and your OPT expires before September 30, the time in between the Employee Authorization Document (EAD) expiration and October 1 is called the “cap gap.”

Note: Institutions of higher education or their affiliated or related nonprofit entities, as well as nonprofit and government research organizations, are exempt from the H-1B cap. They can file H-1B petitions any time of the year and are not subject to the numerical limit. Cap-exempt employers may plan in advance to avoid any gap between the expiration of OPT and the H-1B status begin date.

H-1B Basics

What is a specialty occupation?
A job that requires a bachelor’s degree or its equivalent and specialized knowledge. This includes a wide variety of fields: Science, Technology, Engineering, and Math (STEM), business, accounting, social sciences, education, theology, law, and the arts.

Do I need a job offer to apply for H-1B?
Yes. In the case of H-1B, it is the employer who applies to USCIS on behalf of an employee.

Do I need an attorney? How can I find an immigration attorney if my employer doesn’t have one?
We recommend working with an immigration attorney to provide guidance on the H-1B process, because it is complex to file. Some large employers may already have their own legal department to handle these cases. It is also okay for a student to retain a personal attorney for this process. For information on finding an attorney, visit the AILA website and click Immigration Lawyer Referral Service.

What happens after I submit my application?
If you are selected for consideration, your employer will receive a receipt notice. The receipt includes a tracking number to check your H-1B application progress. If you are subject to the cap and currently on an authorized period of OPT, being selected for consideration qualifies you for a cap-gap extension.

If your OPT end date falls on or after October 1st, you will not receive a cap-gap extension.

What is a cap-gap extension?
A cap-gap extension is an I-20 that allows you to continue working for your employer after your original OPT end date while your H-1B application is pending. If you meet the following criteria, you may be entitled to a cap-gap:

  1. You have properly maintained F-1 status.
  2. Your employment is subject to the H-1B cap.
  3. Your employer filed an H-1B petition for “Change of Status” (not “Consular Notification”) on or after April 1.
  4. Your EAD expires between April 1 and September 30.
  5. The H-1B petition was filed before your EAD expired.

The cap-gap extension of status and work authorization ends on October 1, when the H-1B status begins. This automatic extension of status also applies to your F-2 dependents.

What if my H-1B was filed after my EAD expired?
If conditions 1- 4 above are true but the H-1B petition was filed in the 60-day grace period following the end of your OPT, you are not eligible for the “cap gap” extension of employment eligibility. You are still be eligible to remain in the United States until October 1 if the H-1B petition is approved, but you are not authorized to work during this time period. Consult the immigration attorney for your employer for information about this scenario.

How do I get my cap-gap I-20?
After your employer receives your H-1B receipt notice and before your EAD expires, request an I-20 reprint showing the cap gap information. DO NOT request the cap gap I-20 reprint until your employer has received the H-1B receipt. To request your reprint, use our form. Under ‘Reason for Replacing’ select ‘other’ and type in “cap-gap”.

What do I have to do to maintain status during cap-gap?
Students who remain in the U.S. under the “Cap Gap” regulation remain in F-1 status and must continue to report address/employment changes through this online form.

What if the H-1B Petition is Denied?
If your H-1B petition is denied, the “cap gap” extension of employment eligibility will immediately terminate. You will have 60 days (from notification of denial) to depart the U.S., unless the denial is because of a status violation, in which case you should depart immediately.

This 60 days is not like your F-1 grace periods, there is no opportunity to transfer or Change Level once you’ve been denied. However, transferring your SEVIS to another school or getting an I-20 for a new program of study can be done while your H-1B is pending without affecting the application.

Frequently Asked Questions

Can I apply for H-1B inside the US? What about outside the US?
Yes, either way is possible. If the employee is currently in the U.S., they must file a change of status application to change from F-1 to H-1B. Outside the U.S., the employee will apply for an H-1B visa at a U.S. consulate just as a student would get an I-20 and then apply for an F-1 visa.

How can I find out which employers have hired H-1B employees?
The U.S. government has collected a list of those employers here. Select ‘Case Disclosure Data’, and then ‘H-1B Data’. You can also speak with Career Services about employers who are currently employing international UD graduates.

How can I explain H-1B to potential employers while job hunting?
You can share this ISSS webpage directly with prospective employers, or refer employers to an immigration attorney.

You can also find a lot of information about H-1Bs on the USCIS website. Details on the application process can be found on USCIS’s Temporary Worker page. USCIS also has a helpful guide on changing nonimmigrant classification.

Can I Travel Internationally During the “Cap Gap” Period?
After an H-1B petition with Change of Status is filed, consult your employer's immigration attorney about all international travel, whether or not your EAD is expired.

  • If your EAD is expired, you will not be able to re-enter the U.S. in F-1 status.
  • You may consult your employer's attorney about whether and when you may be eligible to re-enter the U.S. in H-1B status.

Can I change back to F-1 if I get fired or decide to quit my job? What about the rest of my OPT time?
If you gain admission for a new degree program, you can use your new I-20 to apply for a change of status back to F-1. You forfeit any OPT time once you are approved for H-1B.