Differences between Optional Practical Training and H-1B
Optional Practical Training (OPT) is a potential element of F-1 Status. That is, when an alien student is authorized to have OPT, he/she is still under F-1 Status. H-1B status is an entirely different issue from OPT and has its own sets of rules and limitations. If you would like to know more about H-1B, please click here.
Generally speaking, after obtaining the EAD card allowing employment during the period of OPT, a foreignstudent will look for a job in the twelve-month period of optional practical training. In the practical training period, the student can work for any employer, or not at all. He/she can change jobs easily as well during OPT. Also, if an alien taking advantage of OPT is laid off frompractical training, he/she may still have time to find another job.
However, after a student changes his/her status from F-1 to H-1B, he/shemust work specifically for the H-1B sponsoring employer. An H-1B holder may not be able to work for other employers without authorization from the USCIS. If the H-1B holder wants to work for a new employer, the new employer has to file a new H-1B petition for him. Also, if an H-1B holder is laid off, he/she is out of status immediately, although the USCIS has shown some discretionto examine the situation on a "case by case" basis if the H-1B holder later finds a new job and the new employer files a new H-1B petition for him or her. There is not an official “grace period” where an alien can seek new employment and not be out of status, but the USCIS is often willing to overlook short and temporary lapses of H-1B status due to employment termination.
Changing from F-1 to H-1B
An individual in F-1 status (whose field of specialization is classifiable as a specialty occupation) is permitted, if certain conditions are met, to change to H-1B status. An H-1B status is a category for temporary workers who are to be temporarilyemployed in specialty occupations. A specialty occupation is defined as one that requires the theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor's degree or higher in the specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.
The first step for an F-1 holder is to find an employer that is willing to file an H-1B petition on his behalf. The employer then files an H-1B petition for the alien. Thereafter, if the H-1B petition is approved, the alien is granted H-1B status. As a general rule, an individual may remain in the U.S. in H-1B status for a maximum total duration of six years.
Issue about H-1B Cap-Gap
New H-1B will take effect on October 1 every year. This is the date when H-1B visa holdersare eligible to begin working for their petitioning employers. However, an F-1 student’s OPT period will be likely end before October 1, usually expiringin June or July, along with his/her F-1 status. There are several months before October 1 during which the student will lose his/her employment authorization and F-1 status. This time between the end of OPT and the potential beginning of H-1B status is referred to as the “gap”. Fortunately, regulation provides ground to fill this gap known as “cap-gap extension”.
Basically, if your H-1B was filed while your OPT status had not yet expired and your H-1B requires a start date of October 1, you will be covered by this cap-gap extension. This automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. You can continue working during this period. Even if your H-1B petition is pending after October 1, you can work until the H-1B petition’s adjudication process has been completed if your H-1B was filed before your OPT expires.
However, if your H-1B petition is filed during the 60-day grace period after expiration of the OPT, then you cannot work. Under this circumstance, you can legally stay in US and wait until your H-1B petition’s adjudication, but not work.
Once your H-1B petition is filed, you should go to the Designated School Official (DSO) of your school (usually an international office) with evidence of your H-1B case filing receipt (Form I-797, Notice of Action) from the USCIS. The DSO will issue a cap-gap I-20 indicating the continued extension of F-1 status.
Please note that if the USCIS denies your H-1B case, you will have the standard 60-day grace period from the date of the denial notice before you are required to depart the United States. Another important noticeis that you cannot travel outside the U.S. and come back in F-1 status during the cap-gap extension period. If you travel abroad, you will need to apply for H-1B visa and enter no more than 10 days before October 1 if your H-1B petition gets approved.