Hi all,
I have seen a lot of Sajha users interested in H1-B and OPT issues lately and would like to share a few things I know. This might give you an idea of what to expect after you graduate. You might not fully understand everything and might have to do some research on your own, if you are new to the subject.

(This is infact just for general information based on my understanding of the issues and should not be taken as legal advice. You need to consult your International advisor or a lawyer before making any decisions.)

H1-B Visa

1) How many? When can I file and When it starts?
There are 65,000 Regular (undergraduate) and 20,000 Master’s H1-B visas available every year.

H1-B petition can be filed by your employer on your behalf starting the first working day of April until the quota is exhausted. Starting 2008 however, you might have only ONE day to file your H1 petition, irrespective of whether you are filing under Regular or Master’s quota. If your petition is not filed that day, you’ll have to wait for another one year.

H1-B, even after it is approved, is effective only from October 1 of the same year. This means you cannot work until Oct 1 and also that, you have to be in another valid visa status until then.

2) Will it be approved? What are the odds?
Every year, H1 visas are getting exhausted much faster than the previous year. Now it has become more like a DV lottery. Even if you file on time, your petition needs to be selected with a random drawing for processing.

In 2007, the regular quota of 65,000 was gone in a single day. In fact USCIS received more than 120,000 petitions on the first two days and had to do a random draw. The Master’s quota of 20,000 however lasted for about 4 weeks. In 2006, the Master’s quota had lasted for almost 4 months until the last week of July. Based on this trend, I strongly feel that in 2008, the Master’s quota will also get exhausted the very first day you can file your petition. Even worse, if they receive more than 20,000 petitions, you’ll have to get lucky in the random draw.

So, you are not safe until you get the receipt notice.

3) What is H1-B CAP Gap?
It is the gap between the end of your OPT Grace period and the first day your H1 starts which is October 1. You are considered out of status during this period if you are still in the US, which you’d like to avoid. If there is a gap, you need to either extend your F1 to cover the gap by joining school or go out of the country, get the H1 stamp and come back in October.

If you get a new I-20 in this period, you can either file a H1 amendment petition based on your new I-20 and wait for it to be approved (might take few months) while remaining in the US or go out of US (Nepal, Canada, Mexico) around the end of September, get the H1 stamp and come back.

CAP Gap can be avoided if:

- Fall graduates file their H1 petition on the first available filing date.
-Spring Graduates somehow start their OPT on or after August 2 and file for H1 next year.

In all other cases, I think there will be a gap no matter how small the period is. So it is wise to be prepared beforehand and plan accordingly.

4) When is the best time to graduate if I plan to file for H1? Fall or Spring?

If you want to avoid the CAP Gap:

- Fall graduation (in between December and February) is best BUT, you need to get hired as soon as you graduate and be ready to file your H1 in April. If you miss filing, you need to wait one more year and there will be a CAP Gap.

- Spring graduation is good ONLY if you can start your OPT on or after August 2 so that your OPT Grace period ends exactly on or after September 30 next year (This of course involves a lot of calculation, you need to graduate on or after a particular day in June, may be June 3, so is not a viable option)

In all other cases, if you graduate in Spring or if you miss to file your H1 after graduating in Fall, there will be a CAP Gap no matter how small.

So I’d say, start looking for jobs well in advance (at least 6 months) of your graduation if you want to graduate in Fall and go for it. If not, there is no need to panic as you can always join school for a semester or go to Nepal for some time to cover the CAP Gap. You’ll have plenty of time to prepare and plan for this.

5) What is Premium Processing? Does it guarantee H1 approval?
You pay $1000 extra and get the decision within 15 days of your receipt notice, which otherwise usually takes about 3-4 months. It is just to expedite the decision and has nothing to do with the approval. It also doesn’t mean that you can start working right away if your H1 is approved later. You still need to wait until Oct 1 to work just like others with normal processing.

Premium processing can be particularly helpful to those who have a CAP Gap after OPT as they can plan ahead whether to get a new I-20 or leave US once their OPT expires.


Optional Practical Training (OPT)

1) When can I start? When will it end?
OPT is granted for one year and can be started any day within 60 days after you graduate. You ALSO get a 60 days of Grace period after your OPT ends, no matter when your OPT starts. During this 60 day grace period, you’ll still be on valid F1 status but cannot work. You can either change status to H1 or other visas during this period or leave the country.

2) How long will I be in proper status during OPT?
The period of OPT is 14 months once it starts. So if you start your OPT right after you graduate, you’ll have 14 months. If you start on the latest possible day which is the 60th day after you graduate, you have 16 months. In all cases, you can work only during the period of 12 months between your OPT start and end dates.

3) When is the right time to start OPT?
It depends on your future plans or motives like applying for H1 visa during OPT , continuing your studies or may be just extending your stay etc.

If you are planning to apply for H1 later on, all the above discussed factors related to H1 will be crucial in your decision. In any case, try to make the most of this one year you’ve got. Once your OPT starts, remember that the clock is ticking and no matter whether you get a job or not, OPT will end right after one year. So the key is to Plan and Prepare.


Common misconceptions about H1 and OPT:

a) Approval of H1 petition also means Change of Status (COS) from F1 to H1

Wrong. Approval of H1 petition and Change of Status (COS) are two different things. Usually when you file H1, you file for COS from F1 to H1 also. But it depends whether both or only H1 is approved.

- If there is no H1 CAP Gap, USCIS will approve both H1 and COS which means that there will be the new I-94 card attached to your approval notice. You can remain in the US and on Oct 1, your F1 changes to H1. You just need to inform your school so that they can terminate your F1.

- If there is a CAP Gap though, only H1 will be approved (which just means that you are eligible for H1 visa) and there will be no I-94 attached. In this situation, you need to go out of US once your OPT Grace period ends, get the H1 visa stamp and get your new I-94 card at the port of entry on your way back to the US.

b) I can work during 60 day Grace period of OPT.
Wrong. You need to stop working as soon as your OPT ends. You can either change status or leave US during these 60 days.

c) I can work as soon as H1 is approved.
Wrong. Your H1 is effective only from October 1 and you cannot work until then.

d) I can continue working even after my OPT ends once my H1 is filed.
Wrong. You need to stop working and wait until your H1 starts in October.

e) Even if my OPT ends, once my H1 is filed, I will remain in proper status until Oct 1.
Right. Only if you have no CAP Gap.
Wrong. If there is a CAP Gap. You need to get a new I-20 or leave the country by the end of Grace period.

Hope you'll find the information helpful.

Appreciated Antare!
Its a "billion-dollar" posting in SAJHA!!

Great job! The admins need to make these kinds of threads part of a "Help" section of sorts.

A "must see" posting---especially for those who are or will be in OPT and seeking H1-B...

Good job PGA. Eventhough i have already been through these stages, i hope it will be quite helpful to others.

GREAT JOB "PGA"!! actually this was a great help for me since i am getting my OPT coming janurary 2008. i was confused with one thing. you were talking about 60 days grace period after OPT expires. in my case my OPT will expire on 01/23/2009 and according to my international advisor i don't have to join college on Jan session of 2009. but i can wait till summer of 2009 to join, which is a must to maintain my status. and also during those gap between jan 23 to summer session i will not be out of status, neither i have to go out of the US.

i have one question, hope u can answer me. now if i cannot make my H1 this year( april 2008) is there any possible way to reapply for H1 for next year whuch is april 2009. ( my OPT expires Jan 23 2009)
thanks

Hey guys,

It’s good to know that you’re finding it helpful.


STUPIDA,

If your OPT expires on 01/23/2009, you have 60 day Grace period after that. So you’ll be in status until 03/22/2009.

Your advisor is right that you can wait to join Summer class but you need to get your new I-20 within your grace period i.e within 03/22/09, the sooner the better. It doesn’t matter when your class starts but you’ve got to get your I-20 within your grace period. The regulation actually says that your new classes should start within 5 months after your OPT expires if you choose to join school again. So if you get a new I-20 for summer classes during your Grace period, you are good. Fall won’t work as it’ll be more than 5 months.

Also, your previous OPT and it’s Grace period automatically expires and your new F1 comes into effect from the day you get your new I-20. This means you are a new student in valid F1 status and do not need to go out of US. So now, though you cannot work, your company can file your H1 in April 2009 including your NEW I-20. You’ll continue as a student in summer until the end of September and switch to H1 starting 10/01/09. As you need to be in status until Oct 1, you need to enroll for your fall semester also and fulfill all the requirements of a full time student.

Your’s is a very good example of covering the gap. Just make sure that you get your new I-20 as soon as possible after your OPT ends so that your company can prepare your H1 petition before April 1. You should be good if you get your new I-20 by the end of February 2009, as that’ll give your company at least a month to prepare.

I just have one reservation on what you have written up there. As far as I know, the new regulations do not give you 60 days option twice. You will have one 60 day option to prepare for departure after your OPT ends provided your OPT starts right after your graduation. If this is true, do not think smart and start your OPT after 2 months of graduation. It will not extend the number of days you can stay in USA. If you start your OPT after 2 months of graduation, you will have to leave the country right after your OPT ends, provided you have no other valid visa.

PS: I am not 100% certain about whatever I have written but I heard about it. So, confirm this before taking this as a legal statement.

I appreciate your concern bibas100. The more we know about the regulations, the better.

It has been a couple of years since I graduated but during that time we could use the 60 days both before and after the OPT. One of my friends had done that. I'm not aware if the regulations have changed since then. But you should definitely consult your advisor and be 100% sure before your start your OPT.

Some how, I had an impression of total 14 months as well.

Anyway, this is a good help for many of us, who are stil in school.

Thank you Antare dai.

Thanks a lot for posting valuable info. It was very helpful. I am a recent graduate myself and am still confused about few things regarding F-1/H-1 transition.

My OPT started second week of May and lets say my H-1 gets approved for next October. My options, after my OPT expires next May, is to either leave the country or to extend my F-1. If I choose to extend my F-1, do I have to apply for a different degree program (e.g if I finished my undergrad, do I have to start Masters?) and at the same school? Is there's a way to continue working for the company sponsoring me for the visa during the extension period (through CPT etc.)?

Junkiri,
Many people join Kaplan's GRE preparation or something like that for a short period of time. I think you can join it too. It is cheap and they will give you a new I-20.

And, NO, you cannot continue working. CPT applies only when you are studying in school and that too before you are done with the requirements for your major.

Junkiri,

The gap you have in between May when your OPT expires and Oct 1m when your H1 starts is the CAP Gap. Like bibas said, you cannot work during this period and will be out of status if you don't get another I-20 before your Grace period expires.

You can join any program, in the same school or transfer to another it doesn't matter as long as the you get the new I-20. In most of the big cities (I know there are some in New York), you have English language institutes that you can join for ESL (English as a second language) course. They are authorized by USCIS to issue I-20 for international students. It might sound rediculous to join English language institute but that'll help you keep in status until Oct 1.

But as your H1 would've already been filed in April, the approval will come without the I-94 card and you'll either have to go out of US to get the visa stamp or submit the amendment petition with your new I-20 if you don't want to out of US. I'd rather stay in the US in such situation even if it means waiting for a few more months than having to defend my actions during visa interview out of US.

(It might be interesting to know that in 2004, there was a CAP Gap relief provided by USCIS when it issued a regulation that bridged the gap and allowed all such students to remain in the U.S. during the gap. It happened only once in 2004 and is unlikely that will happen again. If it does, you are lucky and don't need to worry about getting a new I-20 or going out of US but don't count on that)

One gets a total of 16 months after graduation including 12 months of OPT. So if you plan ahead you will be able to use most of the time and won't be out of status. There is 60 day period that you can use before your OPT start date and the 60 day grace period after you OPT is over. This regulation has not changed and they don't plan doing so. Probably we may see 2 years of OPT instead but would have to wait few more years...

Ok folks, here is the official statement from USCIS

Curricular practical training . This rule requires that schools using SEVIS update SEVIS any time that DSO authorizes a student’s request for curricular practical training (CPT), that is, a work/study program, internship or practicum that is an integral part of an established curriculum. The DSO must verify that the student meets the eligibility requirements and must also update SEVIS to show whether the work is full- or part-time, the start and end date of the employment, and the name and location of the employer. The DSO will then pri nt SEVIS Form I-20 that indicates that curricular practical training authorization has been granted, and sign, date and return the SEVIS Form I-20 to the student prior to the student’s commencement of employment. A student is not eligible to begin work until the DSO has updated SEVIS to show that curricular practical training is authorized and has printed the SEVIS Form I-20 for the student to provide to the employer. Schools using SEVIS will no longer need to send Form I-538 to STSC when authorizing an F-1 for curricular practical training.

Optional practical training . This rule proposes to require a SEVIS update for an F-1 student who requests optional practical training, that is, temporary employment for practical training directly related to the student’s major area of study. Unlike curricular practical training, which is approved by the DSO, optional practical training is approved by the Service, based on the recommendation of the DSO, and the student must also file Form I-765, Application for Employment Authorization.

Under this rule, the DSO will recommend the student for optional practical training in SEVIS and print the SEVIS Form I-20 with the recommendation to be sent to the appropriate Service Center in conjunction with a completed Form I-765. A DSO using SEVIS will no longer need to submit a copy of Form I-538 to STSC in cases where optional practical training is recommended, since the SEVIS update will accomplish the necessary notification.

This rule also proposes to amend the period of time in which an F-1 may apply for optional practical training. Under the current rules, an F-1 student must apply for post-completion optional practical training no later than 60 days after completion of their full course of study, with the training to be completed within 14 months following completion of study. The requirement that the training be completed in a 14-month period often is problematic for students who wait to apply for optional practical trainin g until close to the end of the 60-day period, since they must then wait for receipt of the Form I-766, Employment Authorization Document (EAD), before they can begin work. This process often results in the student not being able to receive the full 12 months of training.

The current rules also provide, in some cases, that an F-1 student may receive an extra 60 days of authorized stay in the United States. For example, a student can wait to apply for optional practical training until the 60th day after completion of studies, and, at the end of the training period, the student is entitled to a second period of 60 days to prepare to depart the United States. This rule proposes to amend § 214.2(f)(10)(ii) to require that F-1 students must apply for optional practical training p rior to completion of all course requirements or completion of studies, thereby allowing only one 60-day period for departure. The students have only a limited period of time after the program end date in which to complete their training, and cannot begin the training until they have received an EAD from the Service Center. The student must apply before the program end date to ensure that the student will have received his or her EAD in time to commence optional practical training immediately after completi on of study. This requirement will ensure that the students can continue to pursue the purpose for which they were admitted, without a gap, for the entire amount of time for which they are eligible.

Similarly, this rule will require that an M-1 student must apply for practical training prior to the completion date of his or her program. However, the request cannot be made more than 90 days prior to the program completion date shown on the Form I-20.

Finally, this rule provides that authorization to engage in practical training is terminated when the student changes to another educational level. The current regulations provide for automatic termination of such authorization for an F-1 or M-1 student only when the student transfers schools.

What Change Does This Rule Make With Respect to Internships With International Organizations?

This rule proposes to amend §214.2(f)(9)(iii) to specify that an F-1 student who has been offered employment by a recognized international organization submit must apply for employment authorization to the Service Center having jurisdiction over his or her place of residence, rather than applying in person at a local Service office. Also, to make this provision consistent with the other practical training processes, the requirement for DSO endorsement of the Form I-20 ID within the last 30 days is being rem oved.

This rule also deletes obsolete references in § 214.2(f)(9)(ii) for filing a wage-and-labor attestation with the Department of Labor for off-campus employment, since the pilot program sunset on September 30, 1996. Under the current rules, F-1 students seeking off-campus employment (other than an internship with an international organization as discussed above) must satisfy the requirements for demonstrating severe economic hardship caused by unforeseen circumstsances beyond the student’s control.



So, stop giving bull**** if you don't know what you are talking about!!!

View/Share this post only

Here is the link:
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=181845a39ed4d29edfa126516602ab62

So, bibas100 who is giving bull in this thread? I believe everyone is sharing their own opinions and experience. It is easy to cut and past the USCIS regs. but indeed very difficult when it comes to interpretations since many areas are now clear and are referred as GREY AREAS.
Please be more specific when you write next time......

Please help me guys,
My H1b is going to start from October 1 this year. My Opt got over in May and now I am going to school to maintain my stutus until my H1b starts, Octover 1st. My tuition fee is too high. I have paid just 2500 so far out of 7000$ a semester. I don't want to pay the rest of the money. Can I drop my classes after my H1b start i.e october 1st. The reason i want to drop my classes is i don't want to pay extra 3500$ for rest of the semester. Please advise if it effects my status.

istamitra,
If you understand english, can you not read the text in bold? Start reading from the sentence which is in bold. If you can't scroll , here it is:

This rule proposes to amend § 214.2(f)(10)(ii) to require that F-1 students must apply for optional practical training p rior to completion of all course requirements or completion of studies, thereby allowing only one 60-day period for departure. The students have only a limited period of time after the program end date in which to complete their training, and cannot begin the training until they have received an EAD from the Service Center. The student must apply before the program end date to ensure that the student will have received his or her EAD in time to commence optional practical training immediately after completi on of study.

If you don't get it, let me know and I will explain it to you.

All I was saying was don't claim things unless you are sure of it. You said the rules were not going to change, haina? How about the above paragraph?

bibas100,

This rule was PROPOSED in May 2002. I don't know if it ever was finalized and came into effect. What I know for sure is that it hadn't changed until the end of 2005. If it changed during 2006 and 2007, I surely don't know about it.

Also, though it says "to commence optional practical training immediately after completion of study", it's not clear as what immediately means, the next day of your graduation? or after 15 days? or a month? And how to interpret "one 60-day period for departure" ? where it doesn't mention anywhere "change of status" which you can definitely do. If you follow that, you need to depart US no matter what.

The fact that you need to apply for OPT before your program end date is true though. You need to apply within 90 days prior to your graduation I think, so that your EAD comes in time. Please update if you know the rule you mentioned has indeed come in to effect and from when.

loverboye,

If your H1 was approved with I-94 attached, your F1 automatically terminates and changes to H1 starting Oct 1. That's what Change of Status (COS) means and that's why USCIS issued your new I-94 card.

Paying in full I think is not one of the criterias to be in valid F1 status. It only means you cannot take your exam at the end of the semester and only then they might say you can be out of status if you don't take your exam. But not paying alone can't be a reason to terminate your F1 as long as you have fulfilled other requirements. Even if it is, they have to send you several warning letters before doing that. So I think you are good even if you don't pay now. Just inform your school on Oct 1 that you are on H1 now and see what they say.

And you always have the option to pay if it doesn't work.