Questions that Students Frequently Ask about H-1B Visas
For you to qualify for H-1B status, your job must require the use of highly
specialized knowledge, such as that learned through studying for a bachelor's or
higher degree in a particular specialty.
Your job will generally qualify if the normal minimum requirement for entry into
the particular position is a bachelor's degree or its equivalent, or if other
employees in the same position in your company or industry typically hold at
least a bachelor's degree. Even if the occupation generally does not require a
bachelor's degree, your particular position may qualify if the job is so complex
or unique that only a person with a degree can perform the necessary duties.
Positions that are traditionally considered “professional” positions usually
qualify as H-1B specialty occupations. These include positions such as
architects, engineers, lawyers, physicians, and teachers, as well as
accountants, computer professionals, social workers, medical technologists,
dietitians, economists, mechanical engineers, librarians, etc. Some other
occupations clearly qualify, and some others clearly do not qualify. In between,
there are many positions that could go either way, depending on the
circumstances and preparation of the case.
For more information about the qualifications needed for H-1B visas generally,
please see our H-1B Visas page.
Although new H-1B status for any fiscal year does not become effective until
October 1 of that year, your employer is allowed to file your H-1B petition as
early as April 1 of that year. For example, if you want to obtain H-1B status to
start working on October 1, 2008 (i.e., for Fiscal Year 2009), it is critical
that your employer file your H-1B petition as soon as possible after the USCIS
opens its doors for these new petitions on April 1, 2008.
Of course, to actually file in time to receive an H-1B visa number this year,
your employer needs to start preparing your H-1B petition before April 1, 2008,
because it takes time to prepare these petitions, and everyone else will be
trying to file theirs at the same time.
If you miss the current year’s H-1B allocation, you will generally have to wait
again for the following April for an H-1B petition for that October (i.e., you
have to wait for 18 months instead of 6 months to start working in H-1B status).
In years past, the legacy Immigration and Naturalization Service (INS) (which
is predecessor to the current U.S. Citizenship and Immigration Services (USCIS))
was rather generous in issuing public statements that it would allow F-1
students to remain in the United States between the end of their F-1 status
(including OPT) and the beginning of their H-1B status. For example, if
someone’s OPT expired on June 15, but the H-1B status did not start until
October 1, the INS usually allowed the person to stay.
Unfortunately, such generosity is no longer in fashion at USCIS. Although USCIS
has the legal authority to make such public statements, they have not done so in
recent years. Of course, that may change in the future again, but for the time
being, you need to plan on being allowed to stay here legally only as long as
you are normally allowed to do so. That is, it is safest to assume that USCIS
will not be generous this year. Therefore, you need to know what is allowed
under current law.
Under current law, your authorized stay in F-1 status includes a 60-day grace
period, which allows you to remain in the United States for an additional 60
days after your F-1 OPT expires. This does not mean that you can work, though.
You can only stay here during this 60-day grace period.
If you choose to stay in the United States between the time your OPT grace
period expires and the October 1 start date of your H-1B status, you will need
to obtain another nonimmigrant visa status, such as B-1/B-2, J-1, L-1, etc.
(assuming you qualify for them). We strongly suggest that you seek competent
legal counsel before filing for a change of status from F-1 to another
nonimmigrant visa status to cover the gap period after you have already filed
for a change of status to H-1B.
If you cannot maintain valid nonimmigrant visa status between the time your F-1
OPT expires and the time your H-1B status starts (i.e., October 1), you will
need to leave the United States during this gap period. Once your H-1B petition
is approved, you can apply for your H-1B visa at a U.S. Consulate overseas to
reenter the United States for your October 1 start date.
Depending on when you graduate obtaining an H-1B petition without having to
leave the country can be relatively easy or relatively difficult. If you
graduate at the end of Spring Semester in May or June, for example, you may
completely miss out on the opportunity to obtain an H-1B visa number for the
October 1 start date. This especially a problem if you are graduating with only
a bachelor’s degree.
For example, if the H-1B Visa Caps are met in early April or May, you will
completely miss the opportunity because the numbers have run out before you even
qualified for an H-1B visa number. Then if you used your OPT for the next 12
months, your company will be able to file in time to obtain an H-1B visa number
for the next fiscal year, but the problem is that your OPT will expire in May or
June. Even with another 60 days of grace period, you can stay only until July or
August. This is still a couple of months before the October 1 start date of the
H-1B status.
Sometimes, you have no control over your graduation date, but if you do have
some flexibility (which is more common with advanced degrees), you can postpone
your graduation date until the end of Summer or Fall Quarter or Semester. The
delay will allow you to use your OPT for the full year and also start in H-1B
status on the following October 1 without a gap in your employment and without a
gap in your authorized stay in the United States before your October 1 H-1B
start date.
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