The F-1 visa is a student category visa, allowing holders to come to the United States as full-time students. But many students want to transition to working in the U.S. after their studies, and the H-1B visa is one of the most popular work visas available. The question is: can you transfer to an H-1B visa from an F-1 status without going through optional practical training (OPT) or graduating?
The F-1 Visa
In order to petition for an F-1 visa, you must be sure of a few things. The place of your study must be accredited and you must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate. Furthermore, your school must be authorized by the U.S. government to accept international students.
To obtain an F-1, your school will need to obtain an I-120 form from the Student Exchange Visitor Program (SEVIS) and submit that to the USCIS. You will also need to fill out a DS-160 online nonimmigrant visa application.
The H-1B visa is for special occupations, DOD cooperative research, development project workers, and fashion models. In the case of academic students, the H-1B special occupations category would apply.
One of the requirements of the H-1B visa is to have a bachelor’s degree as a minimum requirement for the job being offered. A student is expected to have a confirmed job offer with an employer willing to pursue and pay for an H1-B application.
F-1 to H-1B Without OPT
Optional practical training (OPT) is temporary employment for up to 12 months. It is for F-1 visa holders under certain conditions. It can be used either during studies or after graduation. Sometimes, students will make use of this to allow for graduation and then file for their H-1B visa.
Regardless of OPT, you can apply for an H-1B. The critical factor is having a degree on hand when filing for your H-1B. Certain cases can allow for your previous work experience or previous degree to be used as the basis of your fit for the offered job.
These are delicate situations that can only be assessed on an individual level and it is best to seek advice from a qualified lawyer.
H-1B Sponsoring Employer
You must have a confirmed job offer from an employer willing to file for an H-1B visa on your behalf.
Your employer will be responsible for filing your H-1B petition. Your employer will also need to be in good standing and prove to the United States Citizenship and Immigration Services (USCIS) that you will be paid at least 95% of the prevailing wage for the nominated designation.
The F-1 to H-1B pathway is designed for graduate students to enter the nonimmigrant worker job market after graduation. A student is expected to complete his or her course work, obtain a degree, and then file to compete among the 65,000 lottery-allocated H-1B visas per year.
If you are a post-graduate student and have a master’s or doctorate, then you can also take advantage of the first 20,000 places dedicated for post-graduate degree holders apart from the 65,000 cap.
Labor Condition Application (LCA)
In addition to filing for your H-1B application, the employer must also apply for the Labor Condition Application with the Department of Labor. This, once approved, will be valid for up to three years of employment.
The LCA is to attest your employment details to ensure that minimum labor conditions have been met.
H-1B Visa Graduation and Degree Requirements
The H-1B visa category for special occupations defines the following criteria for the offered job to qualify as a specialty occupation:
- The job being offered must have a minimum requirement of a bachelor’s degree or higher
- The degree requirement for the job must be common for the industry, or the nature of the job must be technical in that it requires a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the job is so complex that the knowledge required to perform the duties is usually associated with the attainment of a higher degree
Cap Gap Extension
Some people will find themselves in predicaments where their work authorization and F-1 status expires while they are waiting for the approved H-1B petition. In this type of situation, you should discuss with your immigration attorney about applying for a cap-gap extension. The extension will permit you to stay in the U.S. on F-1 while your H-1B is being processed.
What if I Don’t Qualify for a Cap-Gap Extension?
If you do not qualify and your F-1 status will expire prior to October 1st you will have to leave the United States and after that you can apply for the H-1B visa at a consultant in your home country. Once your petition is approved you can enter the U.S. on H-1B.
Student Criteria for F-1 to H-1B Transfer
Now once we can verify that the job is a specialty occupation, you must also qualify yourself to be eligible. The following guidelines are given to prospective students looking to transfer status from F-1 to H-1B. Such students must meet one of the following criteria:
- Have completed a U.S. degree required for the specialty occupation from an accredited U.S. college or university
- Hold a foreign degree that is equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
- Hold an unrestricted state license, registration, or certification which authorizes them to fully practice the specialty occupation in the state of intended employment
- Have education, training, or progressively responsible experience and recognition of expertise through progressively responsible positions. All of these have to be in the specialty which is equivalent to the completion of such a degree.
One pathway is to utilize your OPT quota and then apply in the following year. However, you may still apply by obtaining relevant documents from the university attesting to your certain graduation. If you hold a foreign degree or the employer requires the equivalent of a degree instead, then you can proceed as the H-1B filing technically allows for this.
Transferring to H-1B Without Graduation
For an F-1 visa holder who is about to graduate and does not yet possess a degree because the graduation has not taken place or perhaps some course work remains, the options are clear. Because the H-1B requires that you have a bachelor’s degree or the equivalent, you cannot transfer. You will need to wait until you satisfy the requirements before filing.
Filing the I-129
Form I-129 is the actual form that your employer must file with the H-1B petition to request a transfer of visa status. As the beneficiary, you are not able to file the petition or pay for the petition’s filing fees. These are the responsibility of your employer.
Preparing Supporting Documentation
The employer has to submit several supporting documents with the H-1B petition. You, the F-1 student, will have to provide the following:
- Your resume
- A copy of your school degree and transcript
- Copies of all your previously issued I-20 forms (supporting information on the student)
- Last three payslips if currently employed under OPT
- Copies of your Arrival and Departure Record (I-94), relevant passport pages including the F-1 visa stamp passport biographic page, and F-1 visa stamp
- Copy of the signed and certified LCA, which will be applied and obtained by the employer from the Department of Labor
- A full job appointment letter detailing information about the job requirements, salary, and the period of time the employer wishes to employ you
- Copy of the original signed offer letter
The employer is required to pay the H-1B filing fee ($460 as of early 2017) and the ACWIA fee. This fee is different for varying company sizes. The fraud prevention and detection fee must also be paid by the employer.
The F-1 student should not be paying any of these fees. If the employer or the student wishes to expedite the process, then either one can pay the premium processing fee.
Common H-1B Filing Mistakes
- Making the wrong type of account – there are three types that can be made:
- Applicant/petitioner/requestor account – this is not the correct type of account to submit H-1B registrations
- Attorney/representative account – this is for attorneys or representatives to submit H-1B registrations on behalf of their petitioner client
- Registrant Account – if you are a petitioner wanting to participate in the H-1B process, this is the type of account you should create.
- Selecting the wrong I-129 start date
- Incomplete job description
- Duplicate entries in the system
- Filing late
- LCA delays
- Delivering your petition in the wrong way
- Selecting the wrong service center – use this USCIS Service and Office Locator tool
The best way to avoid these common H-1B filing mistakes is to have a professional immigration attorney thoroughly review and manage your case.
Frequently Asked Questions
Below you will find answers to the most commonly asked questions about this topic:
What is the purpose of Form I-129?
This is the form you will need to use to apply for a change of status to go to H-1B visa.
What is the cost of filing the H-1B visa?
You can see a breakdown of the H-1B fees below.
How many H-1B visas are issued each year?
65,000 are allocated in the general category and another 20,000 are set aside for post-graduate degree holders.
Who files the Labor Condition Application?
The employer should file the LCA with the U.S. Labor Employment and Training Administration once the H-1B petition is filed.
How long is the LCA valid for?
It is valid for up to 3 years.
The Next Steps
Making the switch from an F-1 student visa to an H-1B can be a tricky process for anyone but an experienced expert. To avoid the common mistakes and pitfalls that set so many people back, it’s always best to have a qualified immigration attorney help you with your case.