An H-1B Specialty Work Visa is a common goal for students that want to remain in the US to work long-term after graduating. While our office is not an expert on this category, we hope this overview will help you learn more about this option.
The H-1B visa is employer-sponsored, which means your employer must apply for you. You cannot apply for yourself. Your employer will either have staff that will manage your H-1B application, or will hire a lawyer to manage the process. In either case, the employer will complete most of the forms, and is also responsible for the fees. The only fee you can pay is the Premium Processing fee, which is an optional fee to request an expedited review of your application.
Timeline and Basic Steps
Most students working in OPT will have their H-1B application submitted while they are still working on OPT.
There are currently three major steps to the H-1B application after it is submitted:
First, your application has to be selected in the registration lottery, which takes place from March 1-20. This means that your application is selected from a pool of applicants to be reviewed. There are currently (as of 2019) a total of 85,000 H-1B’s available each year. 20,000 of these are reserved for advanced degree holders only (Masters and PhD graduates), and all applicants are included in the remaining 65,000, including advanced degree holders that were not selected in the first 20,000. The applications to be reviewed are selected at random from the pool of applications.
Second, if you are selected, your employer can then submit a complete H-1b petition for you within 90 days. Your employer will receive a receipt for you after submitting the complete H-1b petition.
Third, after being receipted, your application is eventually reviewed and a decision is made. If it is approved, your H-1B status does not actually take effect until October 1.
Two Ways to change to H-1b: Change of Status and Consular Processing
- Change of status means the petition is asking to change your status to H-1b in the US, without leaving the country.
- Consular processing means the change to H-1b will only take place after the H-1b is approved AND the person leaves the US, applies for an H-1b visa, and returns to the US with the H-1b visa.
Change of status considerations: Please note, you can NOT travel outside the US while your H-1B application is pending through a change of status, or even after it is approved, before it becomes active on October 1. The next time you travel abroad after Oct 1, you will need to apply for an H-1B visa stamp in your passport in order to return to the US. As with any visa type, you can only apply for the new visa while you are outside the US.
Consular Processing considerations: If you are changing via Consular Processing, you would need to wait until after October 1, and at some point after that date leave the US and apply for an H-1b visa. You must have your own work permission (such as valid OPT/STEM OPT) until you return from your trip to get your H-1b visa. You will not have H-1b work permission or status until you return with the H-1b visa.
OPT Cap Gap and H-1B start date of October 1
Even after it is approved, H-1B status is not actually active until October 1 each year. This means that you need a form of work authorization that is NOT H-1B until Oct 1.
For F-1 students on OPT, often your OPT might last until or beyond Oct 1. However, the OPT Cap Gap also exists in case your OPT expires before that time.
The OPT Cap Gap requires that your OPT end AFTER April 1, while you have a pending H-1B application AND RECEIPT. If this is your case, your OPT end date before Oct 1 would be automatically extended to September 30, so that you there is no interruption in your ability to work on OPT before your H-1B takes effect.
Please note that if your OPT ends before April 1, the Cap Gap will not be an option. It will also not be an option if your H-1B application is not receipted (selected for review).
If you are in a position to use the Cap Gap, please contact IES so we can update your I-20 with the Cap Gap extension to your OPT dates.
“Portability” refers to the ability to move your H-1B status from one employer to another. The new employer must complete an H-1B application for you, but this process is different than the original application and is not limited by the H-1B cap of 65,000, since you already have an H-1B. You should work closely with the new employer for details on this process. Please note that you must be in active H-1B status to “port” to another employer, meaning your original H-1B application must be approved AND active, which happens on Oct 1 of the year you applied – you cannot port the H-1B before that time.
“Cap Cases” and “Cap Exempt Cases”
The “H-1B Cap” refers to the maximum number of H-1B’s available each year – currently, 65,000. Most employers must participate in the process described above to have their employees considered for an H-1B.
However, there are a few types of employers that are considered “cap exempt” – these employers can file for an H-1B for an employee outside of the regular April 1 – Oct 1 timeline, and do not have to compete for a limited number of possible H-1B’s. Cap-Exempt employers include Universities, some Non-Profits organizations, and the US Government.
H-1B Duration and Employment-Based Permanent Residency
An individual can hold H-1B status for up to 6 years. It is approved for 3 years at a time. During that time, an employer can choose to sponsor an employee for Permanent Residency, usually through the EB-2 or EB-3 categories of Permanent Residency (EB = Employment Based, and the numbers represent different level of expertise that the employee holds, such as an advanced degree).
Once an H-1B employee has a pending Permanent Resident application, the H-1B can be extended indefinitely to ensure that the employee can continue working while waiting for the Permanent Resident application to be approved, which can take 1-10 years, depending on a number of factors.
Future of H-1B?
There are many different kinds of rhetoric in current American politics surrounding immigration. While there is no clear indication of what will happen, there have been suggestions to make certain positive changes to H-1B status including to increase the number of available H-1B’s each year; to allow H-4 dependents the ability to work in the US once their H-1B spouse has filed with their employer for Employment-Based Permanent Residency; and the possibility of making the Employment-Based Permanent Residency option easier for employers to begin, so that employers that want to sponsor an employee do not necessarily have to use H-1B status first as is usually the current practice. While there are absolutely no changes that are definite at this point, we will continue to watch the lawmakers’ actions and inform the international community at UMBC of any relevant changes when they become more concrete.
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