Questions that Students Frequently Ask about H-1B Visas 

• I am an F-1 student working in my Optional Practical Training (OPT). How do I know if my job qualifies for H-1B status?
• I am in F-1 status on Optional Practical Training. How soon should I have my employer file its petition for my H-1B status?
• If my Optional Practical Training expires before my H-1B status becomes valid, can I legally stay in the United States between the expiration of my OPT and the start of my new H-1B status?
• I am still studying at a U.S. university, but I am worried about the H-1B caps. Will postponing my graduation until after October 1 make it easier for me to find an H-1B-eligible position without having to leave the country after my Optional Practical Training expires?
   

I am an F-1 student working in my Optional Practical Training (OPT). How do I know if my job qualifies for H-1B status?

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.

I am in F-1 status on Optional Practical Training (OPT). How soon should I have my employer file its petition for my H-1B status?

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, 2009 (i.e., for Fiscal Year 2010), 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, 2009.

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, 2009, 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).

If my Optional Practical Training expires before my H-1B status becomes valid, can I legally stay in the United States between the expiration of my OPT and the start of my new H-1B status?

Fortunately, under current law, the answer is yes. In years past, the answer was no, then yes, then no, and finally yes again, and that is where it is currently. Since 2008, if you win the H-1B lottery, then your F-1 OPT status is automatically extended until October 1, which will be the first day of your H-1B status. This is one of the few major headaches the government has eliminated with respect to the H-1B cap.

I am still studying at a U.S. university, but I am worried about the H-1B caps. Will postponing my graduation until after October 1 make it easier for me to find an H-1B-eligible position without having to leave the country after my Optional Practical Training expires?

Fortunately, under current law (i.e., with the automatic F-1 OPT status extension for those who win the H-1B lottery), the timing of your graduation has generally become less of an issue. Before 2008, one could try to avoid the H-1B "cap gap" problem (i.e., the need to leave the country between the time your OPT expired in late summer and your new H-1B status started on October 1) by graduating in December instead of May/June.

If you are a so-called "STEM" graduate (i.e., if your degree is in science, technology, engineering, or mathematics), a December graduation could give you three chances at the H-1B lottery instead of just two chances. This is an exception to the general guidance above that graduate dates generally do not matter any more.

Specifically, if you graduated with a STEM degree in December, you could apply in the April H-1B lottery while in still F-1 OPT and if you lost that lottery, you could continue working in OPT and later on apply for a 17-month OPT extension. The 17-month extension would allow you to petition for H-1B again in April. Then just before the very end of your 17-month extension (i.e., in the month before your OPT expires in May), you could file your third and final H-1B petition, and if you finally won this one, you could receive the "automatic" OPT "cap gap" extension that everyone gets if they win the H-1B lottery (i.e., even if they are not STEM graduates). Aside from this example, the date of your graduation generally does not matter for your H-1B lottery efforts.