F-1 to H1B Visa : Change Of Status

Many international students studying in the U.S. on an F-1 visa consider different options for working in the U.S. on a more permanent basis. One of the options is changing the visa status from an F-1 visa to an H-1B visa, but obtaining it can be challenging since an H-1B holder is a professional in a specialty occupation, and you will still have limited practical training experience under the F1 visa.

But, do not be discouraged, it is possible!

This article will explore how the change of status petition process works and how you can apply for a status change from an F-1 to an H-1B visa, and get the green card.

What is an H-1B visa?

An H-1B visa is intended for temporary employment in a specialty occupation. There are three types of workers who are eligible for the H1B visa:

Foreigners who have special interests in a job that requires theoretical knowledge in a specific field of study and hold at least a bachelor’s degree.
Those who can work with a cooperative research organization that administers a Defense Department program.
Fashion models with distinguished merit and ability

In other words, H-1B visa is an employment based visa that allows U.S. employers to hire workers in specialty occupations, requiring theoretical and practical application of specialized knowledge and at least a bachelor’s degree.

H-1B visa allows the foreigne skilled workers to:

Work legally in the U.S. for a period of 3 to 6 years.
Gain practical and theoretical experience related to the professional field
Bring their dependents on an H4 visa.
Enter and leave the U.S. as long as H-1B status is maintained.
Apply for permanent residency in the U.S. (obtain a green card)

What is an F1 visa?

The F1 visa is a visa for international students who want to attend school in the U.S. and it is granted for the entire duration of the academic program you are in.

As an international student, you can achieve F1 status in two ways:

Through consular processing- the process of seeking a visa from outside the U.S. at a U.S. consulate or U.S. embassy, or
Change of status- getting the status from within the U.S.

To get the F1 visa, an approved school must sponsor your petition to come to the U.S. by issuing a Form I-20. Also, to maintain F-1 status, you must attend this school. If you want to work in the U.S. while studying, you will have to obtain permission known as Curricular Practical Training – CPT) or Optional Practical Training – OPT.

Navigating the shift from an F-1 to an H-1B visa

After graduating, many international students on an F1 visa hope to adjust from F1 to H-1B visa status. To do so, students can do two things:

Take the F1 to OPT to H-1B, or
Change directly to H-1B.

Let’s first learn how you can take optional practical training – OPT.

Optional Practical Training OPT for International students

Many F1 students participate in OPT program (optional practical training) before applying for H-1B. If you engage in OPT after graduating, it gives you an interim phase to gain experience in the field of study. Moreover, you can use this time to look for your prospective H-1B sponsoring employer.

One of the most important thing is approaching designated school official (DSO) at your college or university and get a recommendation that you can participate in the OPT program. When students get the allowance, the DSO make a notation in their record in the Student and Exchange Visitor Information System (SEVIS record).

There are two ways students can participate in OPT as an F1 student:

Pre-completion OPT
Post-completion OPT

You can participate in the Pre-completion OPT after being lawfully enrolled full-time for a full academic year at a certified college, university, conservatory, or seminary, while post-completion OPT is intended for students who completed their studies.

However, F1 students may also apply directly for H-1B from F1 status if they have found the sponsoring employer to sponsor their H-1B visa petition.

How To Get the Employment Authorization Document in F-1 Visa status?

If you are an international student in F-1 nonimmigrant status participating in the OPT program, you have to obtain an EAD from United States Citizenship and Immigration Services before being authorized to work.

The EAD will state the date you need to follow, and you will not be allowed to start your work before the date indicated.

An EAD is your physical proof that you have employment authorization in the U.S.

You cannot work on or off-campus until you obtain the EAD and your selected start date has arrived.

To get your EAD for the OPT program either before or after you graduate, you must follow four steps:

Talk to the designated school official at your school to get the recommendation in your SEVIS record that you are allowed to work in the OPT program.
Apply for your EAD.
Submit requirements.
Receive your OPT EAD card.

Afterward, you need to file Form I-765, Application for Employment Authorization, with USCIS and obtain EAD from USCIS.

How To Change status From F1 To h1b Visa?

To change status from F1 to H-1B work visa, you need to have in mind the following main steps.

#Get the Job Offer

It doesn’t matter whether you are applying for H-1B directly from F1 visa status or OPT, you have to have an open job offer from an H-1B sponsoring employer who will apply for an H-1B visa on your behalf.

#Submit the H-1B petition On Time

Since there are certain limitations on the annual cap number of H-1B visas, you need to pay attention to important dates announced by USCIS. The H-1B visa is limited to 65,000 visas under the general category and 20,000 visas for the master’s cap.

Therefore, your employer must file your H-1B visa petition as ‘Change of Status’ by the stated deadline.

#Check Eligibility for a cap-gap extension.

After you have filed an H-1B visa petition and your case is pending, you may be eligible for a cap-gap extension and allowed to remain on F1 visa status. In this case, your work authorization and F1 status will not expire until the H-1B employment is approved.

If your F1 period of authorized stay expires before October 1 and you do not qualify for a cap-gap extension, you will have to leave the U.S. and apply for an H-1B visa at a U.S. embassy or consulate abroad. Once your petition is approved, you may enter the U.S. on H-1B status.

F1 to H1B visa Application Process

The F1 to H-1B visa application process is the same as the regular H-1B application process.

Since the U.S. employers are the ones to file H-1B petitions on behalf of foreign workers, they have to:

File a Labor Condition Application LCA with the U.S. Department of Labor.
Complete two forms:
1. Form I-129, Petition for a Nonimmigrant Worker
2. Form I-129 H Classification Supplement
Submit all supporting documentation as required per individual case
Prove that the employer is in good standing and will be pay you at least 95% of the prevailing wage for the applicable occupation.

H-1B Consular Processing

To apply for an H-1B visa, you may use consular processing. Consular processing is when you apply for a visa from outside of the U.S. or from your home country. If you got the F1 visa through consular processing, you are familiar with this process since it’s very similar.

To get an F1 visa, you completed the online form DS160, scheduled an interview at the nearest U.S. embassy or consulate, and provided the consulate officer with the requested documents- similarly, you will do for your H1B.

Sometimes consular processing is called F1 to H1B stamping or the H1B stamping process since the H-1B visa is “stamped” inside your passport. You need the H1B visa stamp to show to the immigration officials at the port of entry when you enter the U.S.

Required Documents For Change of Status From F 1 to H1B visa

The only form you must use to change your status from F1 to H-1B is Form I-129. Also, an authorized individual, usually the one in charge of hiring new employees within the company petitioning for your H-1B visa, must sign this form.

Filing Fees

In the change of status process, there are several fees that you will need to pay.

The filing fee for the Form I-129: is $460
Depending on the company’s size, ACWIA fees: $750 or $1500 if the sponsoring employer has more than 25 employees.
Fraud Prevention and Detection fee: $500
Only in a few circumstances: $4000

Evidence to Support Your Petition

Support your petition by submitting the following evidence with your I-129:

Copy of your F1 Visa
I-94, Permission to enter the U.S.
I-20s, following your most recent entry
Graduation evidence and transcript
A job offer letter from the U.S. company proving that you have an open job offer- this letter needs to state a job title, job duties, job description, and your salary
Copy of the certificate of formation of the U.S. Company
Labor Condition Application
Evidence that the company exists (tax returns, website, social media, etc.)

Consular Processing Phases

There are two phases of the consular processing process.

#Phase One: the U.S. employer files the Form I-129 with U.S. Citizenship and Immigration Services USCIS

The sponsoring employer files Form I-129 on your behalf with all necessary documents. When the USCIS receives it and assesses it, they will decide on the approval.

When you receive approval from the USCIS, you may move on to the second phase.

#Phase two: Complete Form for a visa application and schedule an appointment at a U.S. consulate

Once the USCIS approves Form I-129, you will have to complete a visa application and attend the scheduled appointment at a U.S. consulate or embassy.

At the interview, you can expect that the consulate officer will ask you for the original or copies of the documents your employer submitted with Form I-129.

Also, the interviewing officer may ask for your documents, such as past visas and evidence of your college degree.

How To Go From F1 to H-1B without OPT?

If you want to go from F1 to H-1B without OPT, you need to be aware that it is essential to demonstrate that you graduated with a degree that qualifies you for the job. So, we highly advise you not to apply for OPT too early.

Usually, OPT occurs after you’ve graduated, so in most cases, you’ll apply for your H-1B during OPT.

What If My H-1B application is denied?

When you go from F1 to H-1B, USCIS may not approve your change of status for specific reasons. If your change of status application is denied, you can go through an appeal process. It’s best to discuss that process and strategy with an experienced immigration attorney to understand the matter.

Remember, if your legal stay in the U.S. depends on the approval of the F1 to H1B change of status application, it is essential not to wait and take the actions as soon as you find out about the denial.

How An Immigration Lawyer Can Help You

No matter which visa category or green card you’re interested in, it’s essential to have an immigration legal expert on your side to guide you on your immigration journey. The complexity and detailed requirements for nonimmigrant and immigrant visas make getting help necessary.

Seek out counsel from the Herman Legal Group, a U.S. immigration law firm with over 25 years of experience representing individuals, families, and companies in all aspects of immigration law in all 50 states and worldwide.

Schedule a personal consultation with Attorney Richard Herman by calling 1-800-808-4013 or 1-216-696-6170 or book online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.