Is there any advice you can give me about the H-1B process?

Employers subject to the cap need to file H-1B petitions on April 1st or shortly thereafter in order to obtain an H-1B for the following October. It is important to discuss the H-1B visa with your employer well in advance of April 1st of the year your OPT will expire.

It is illegal for an employer to file an H-1B on your behalf for a position that you have no intention of taking, and which the employer has no intention of offering you, just so that you can increase your chances of being counted under the cap. In fact, if you knowingly let an employer do this, it could be considered fraud under INA §212(a)(6)(C)(i), and may bar you from any future immigration benefits in the United States and even subject you to potential criminal prosecution! Be particularly wary of any employers who offer to file an H-1B for you for a fee.

Can AUSB advise me about obtaining an H-1B visa?

AUSB does not provide advice on H-1B issues. It is important for you to address any questions to your current or prospective employer. It may be advisable for your current or prospective employer to work with an immigration lawyer.

Can I travel abroad while the H-1B application is pending?

This is generally unadvisable, as USCIS may consider you to have abandoned the “change of status” portion of your H-1B petition. We recommend that students wishing to travel while the H-1B visa is pending talk to an immigration attorney.

What is AUSB’s involvement with the H-1B application process?

AUSB is not involved with the H-1B visa application process; however, it is important that you notify a Designated School Official if your employer will be submitting an H-1B visa application on your behalf to determine if you are eligible for a cap-gap extension.

You may be eligible for one of two cap-gap extension benefits:

  • If the employer files your H-1B (change-of-status) petition and it is received by USCIS prior to your post-completion OPT expiration date, you qualify for an extension of your OPT employment authorization.
  • If the employer files your H-1B (change-of-status) petition and it is received by USCIS after your post-completion OPT expires but during your 60 day grace period following OPT, your F-1 status and permission to remain in the US are extended but you are not eligible to work.

There are two types of cap-gap extensions:

  1. For H-1B petitions that have been filed and you have received the I-797 receipt
  2. For H-1B petitions that have been filed but you have not received the I-797 receipt

Petitions that have been filed with receipt confirmation:
If your H-1B (change-of-status) petition has been filed by your employer and receipted by USCIS, you are eligible for an automatic cap-gap extension I-20 through September 30th. A Designated School Official would need to receive a copy of the I-797 Receipt notice from USCIS or USCIS approval notice.

Petitions that have been filed but NO receipt confirmation:
If your H-1B (change-of-status) petition has been filed by your employer but not receipted and your OPT expires before June 1 you are eligible for a preliminary cap-gap extension until June 1st. Once your petition is receipted, request an automatic cap-gap extension I-20 by following the steps above.

To request the preliminary cap-gap extension because your OPT expires before June 1, AUSB would need to receive a copy (PDF or paper) of your timely filed H-1B petition and a FedEx, UPS, or USPS Express/certified mail receipt.

What is the cap-gap extension policy for students whose OPT authorization will expire before their H-1B status begins October 1?

Duration of status and work authorization are extended for a student on OPT who is the beneficiary of a timely filed H-1B petition requesting an employment start date of October 1 of the following fiscal year. The extension of duration of status and work authorization automatically terminates upon rejection, denial, or revocation of the H-1B petition filed on the student’s behalf. Unfortunately, most H-1B applicants are subject to the cap, and there are far more individuals hoping to obtain H-1B status than the cap permits. Many students may have timely H-1B petitions filed on their behalf that are rejected by the USCIS lottery, ending the extension of duration of status and work authorization.

When can the application process begin?

Employers subject to the H-1B cap can submit applications up to six months prior to the next fiscal year. Because the U.S. government’s fiscal year begins October 1, applications can be submitted April 1 for the upcoming fiscal year. H-1B status, including work authorization, becomes effective October 1 of that year. Employers exempt from the cap can submit applications any time and, for new H-1Bs, H-1B status becomes effective when the application is approved.

What is the H-1B cap?

There is a limit of 65,000 new H-1B visas granted each year, plus an additional 20,000 visas for those who have earned advanced degrees (i.e., MA, PhD) in the U.S. USCIS rejects cap-subject applications received after the cap is met. In recent years, USCIS instituted a “lottery” system for accepting applications because more than 65,000 regular H-1Bs were received on the first possible day of filing. Timely filed cases that are not chosen through the lottery system are rejected.

What are the steps in the process?

The employer submits applications to the U.S. Department of Labor and U.S. Citizenship and Immigration Services (USCIS) to demonstrate that the employer, position, and employee meet the criteria for H-1B status. If the employee is in the U.S., a change of status from F-1 to H-1B within the U.S. may be possible. If outside the U.S., the employee applies for an H-1B visa at a U.S. consulate and enters the U.S. in H-1B status.

What is a specialty occupation?

A specialty occupation requires specialized knowledge along with at least a bachelor’s degree or its equivalent. Common fields with specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

What is the H-1B classification?

H-1B is a nonimmigrant classification for temporary employment in a specialty occupation. It is commonly called the “working visa” because it is the most commonly used work visa. While OPT is a benefit of F-1 status that allows AUSB students to work for one year, H-1B is a separate nonimmigrant classification specifically for employment.

Do I have to be registered while on CPT?

You must be registered in an approved internship/practicum course while on CPT.  The internship/practicum course must count toward a degree requirement.  You must maintain full-time enrollment while on CPT.