From F-1 to H-1B

Posted on March 23, 2008 by Warren Wen | Category: Immigration

Adjusting Your Status from F-1 to H-1B

In previous articles, we’ve analyzed the tough situation for H-1B applicants this year and addressed some of the major issues for this visa type based on our past experience.  However, many alien students still have questions about the H-1B application.  Below are two common ones:

Ms. Li: I will get my PhD this August.  I found an employer who is willing to file an H-1B application for me.  Because I am still a student, we only reached an oral agreement for my employment.  The official contract will be signed after I get my degree.  I am not sure whether the employment contract is necessary for an H-1B application.  I am very worried that my F-1 status will expire if I cannot change to H-1B status this year.  What should I do?

Mr. Wang: I got my master’s degree last year and my OPT will expire this August.  My employer wants to file an H-1B application for me, but there is a serious problem.  I heard that the actual employment period for an H-1B can only begin in October.  If this is true, my status will have expired already by that time.  Could you give me some suggestions on what to do?

Answer: Both questions are related to alien students who want to stay in the US under an H-1B status.  For Ms. Li’s situation, according to US regulation, there is one year for Optional Practical Training (OPT).  Alien students are allowed to work in the US legally during that period.  Once the alien student finds a job and the employer files the H-1B application for her, she will be able to change her status from F-1 to H-1B.  Ms. Li will get her PhD this August and her OPT status will expire next August.  Ms. Li should then have enough time to change her status from F-1 to H-1B if her H-1B application is approved.

Although the employment contract is not required by the USCIS for an H-1B application, it is still important for Ms. Li to have one in order to protect herself.  However, as long as Ms. Li and Ms. Li’s employer have reached an oral agreement, the employer can file an H-1B application for Ms. Li.

On the other hand, Mr. Wang’s situation does not look as promising as Ms. Li’s.  His problem is one of the biggest problems that most alien students face.  According to USCIS regulation, the quota for H-1B opens on October 1 of each year and the H-1B application can only be filed as early as six months before October 1.  That is to say the H-1B application can be filed from April 1 every year, but those that get their applications approved can legally start to work for the employer on October 1 with their H1B status.  In fact, most of alien students that receive their degrees before October 1 have OPT periods that will expire before October 1.  In Mr. Wang’s situation, he can only work under his H-1B status starting October 1.  Therefore, Mr. Wang will have to leave the US after his F-1 status expires in August.

Are there any alternative solutions?  One option for Mr. Wang is to find a university and apply for F-1 status again.  This way, he can keep his legal status while he is waiting for his H-1B to be approved.

Generally speaking, alien students who want to change their status from F-1 to H-1B need to give themselves enough time.  Not doing so may create big problems, and could even cause the loss of their legal status in the US.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.