Students : One year of Practical Training - What's next?
Posted Feb 25, 1999

Most international students know that they can get up to one year of practical training work authorization after completion of their studies, generally referred to as OPT or Optional Practical Training, in order to distinguish it from Curricular Practical Training (CPT). OPT can actually be either during the program or after completion. Both CPT and OPT provide foreign students valuable opportunities to obtain work experience in the U.S. The OPT enables the student to work for any employer, as long as the work is related to the subject studied.

From this point, the student may have several options. The most common of these would be: (a) work for the one year and then leave the U.S. or (b) locate an employer who is willing to sponsor for another status, usually H1B.

Those who are considering the second option should begin the H1 process early if possible, ideally 5 to 6 months prior to the expiration of their practical training authorization. In that way, even if there are unexpected delays in the process, the H1 petition could still be filed prior to the expiration date. As the Law Office of Sheela Murthy has observed, in some States the LCA for the H1B can take several weeks to come back from the U.S. Department of Labor, and certain INS Service Centers have been taking several months to issue approvals. In addition, the H1 cap may also be a factor in favor of starting the process early. The H1 process begins with determination of the prevailing wage. An H1 employer is required to pay the higher of: the prevailing wage for the position in the local area, or the actual wage paid to employees at the company who hold similar positions. The most common method of finding the prevailing wage is to request the state labor agency to issue a prevailing wage determination. However, sometimes other sources of wage information, such as published surveys, can be used, provided they meet legal requirements. The prevailing wage data as well as other basic information is then entered onto a one-page form, known as a labor condition application or LCA, that is submitted to the Department of Labor (DOL). DOL then certifies the LCA and returns it.

The next step is to submit the petition form to INS, along with the LCA as well as information on the company and the nature and duties of position and the employee/beneficiary's background and education. Depending upon the location of the employment, it can take anywhere from 3 weeks to 5 months for the INS to approve the petition.

The processing time by the INS varies depending on where the application was filed, which in turn depends on the location of the job. Processing times at the four INS Service Centers are approximately as follows: 3 to 4 weeks at the Vermont Service Center, to 4 months or longer, with the Texas Service Center or the California Service Center. The processing time at the Nebraska Service Center is somewhere in between, depending on their caseload. As you may know, there are four INS Service Centers, and they vary quite a bit in terms of processing times.

During the past few months, the Centers have been experiencing additional delays, most likely due to the large number of cases that were submitted during November 1998, prior to a fee increase taking effect on December 1, 1998. Lately, we have seen these delays ease at the Vermont Service Center, and hopefully the other locations will get back to normal shortly as well.

As an aside, in January 1999, the Texas Service Center stated that it is now processing H1B Petitions within 30 days. We hope that turns out to be accurate and if so, that the processing continues at this rate.

The Law Office of Sheela Murthy regularly posts the processing times released by the Service Centers when they provide that information to the American Immigration Lawyers Association.

An H1 petition filed on behalf of an F1 student would generally be filed requesting a change of status, so that if the student is in valid status, the person would be eligible to obtain a change of status within the United States without having to travel abroad when the H1B petition is approved. If the H1B beneficiary needs to travel abroad at some point, it is necessary to obtain an H1 visa stamp in the passport from a consulate abroad in order to re-enter the U.S. in H1B status.