FAQs on F1 and Related H1B Issues
Posted Dec 28, 2000

As a follow-up to our three-part series on F1 students, we present the following set of frequently asked questions on F1s, including questions that we at The Law Office of Sheela Murthy, P.C. are often asked about changing status to H1B.

a) How do I apply for F1 status?

Whether you are abroad or in the U.S., you would begin by contacting schools and obtaining application materials. Each school has a designated school official (DSO), often referred to as the International Student Advisor, who can help you with the process, advise you as to what if any English language proficiency tests may be needed, and so forth. The DSO fills out a form called an I-20 that indicates the expected duration of the study program, the costs, and other information. This is one of the items that submitted to the U.S. consulate in the F1 visa applicant’s home country, if applying for the F1 visa overseas, or to INS if applying for a change of status to F1 while in the U.S.

Our website Student Section, in articles such as Part 1 of our Overview series on F1 students, has additional information about the kinds of documentation that need to be submitted when applying for the F1 visa. When applying through INS, you can have an attorney file the application, but most students are able to file the papers on their own with the help of the International Student Advisor at the school.

b) Can I work while on F1 status?

If you are granted either Optional Practical Training or Curricular Practical Training, you will be authorized to work for a specified period of time. For more information, review "Overview: F1 Visas, Part 2 of 3."

c) Am I subject to the H1B cap if I change status to H1B?

Yes, if you have never held H status previously, then you are subject to the H1B quota or H1B cap when filing for a change of status to H1B. However if you have held H status in the past six years, you may not be subject to the cap. Please note that since the increase in the H1B quota under the American Competitiveness in the Twenty First Century Act (ACTA), signed into law on October 17, 2000, the H1B cap now appears to be less of a concern than it was even a few months ago. Still, if H1B usage increases sharply, this situation could change again.

d) When can I file for change of status to H1B?

It is possible to file for a change of status from F1 to H1B at any time, provided you have met the requirements for a specialty occupation and satisfied the criteria for eligibility of an H1B status. Since the H1B requires a Bachelor's degree, if you are in a Bachelor's degree program on an F1, you would need to complete your studies first, unless you already earned a Bachelor's degree (equivalent to the U.S. Bachelor’s degree) in the home country before. (Not all foreign degrees will equate to a U.S. Bachelor's degree. There are various factors, including number of years of study and nature of the courses. Credentials evaluations are recommended for persons who do not possess a U.S. degree.)

e) If I filed for a change of status to H1B and the petition is still pending, can I travel?

There is nothing legally preventing you from traveling, but it can be a little risky. Often students have a difficult time traveling and have been known to have a difficult time getting back into the country. Generally one would recommend postponing travel until after the H1B petition has been approved. In such case, you would obtain the H1B visa abroad and re-enter the U.S. in the H1B status. Please note that after being approved for a change of status to H1B (with an I-94 card at the bottom of the approval notice), you can start working and do not have to travel abroad. However, if at some point you do travel abroad, then you would need the H1B visa stamp in the passport to reenter the U.S. on H1B status.

f) Can I change my status to F1 to avoid the 6-year cap on H1B, and then change back to H1B status after a year to restart the 6-year clock?

No. After 6 years on H1B, the only way to restart the clock for the entire 6-year term on H1B is to leave the country for one year. Please note that under certain circumstances (relating to particular stages of the Green Card process), a person may be able to obtain an extension beyond the 6 years, without leaving the U.S., under ACTA. For details on these possibilities, check out our articles on that topic, including ACTA Helps Those Waiting for Priority Dates to Become Current published in our November 3, 2000 bulletin, Attorneys Discuss Finer Points of ACTA  from the November 17, 2000 MurthyBulletin, and other articles.

g) I came to the U.S. on B2 status but want to change to F1; is this possible?

It is technically possible, but it may not be desirable, and there are risks involved. The doctrine of preconceived intent or presumption of fraud applies. So it is better to avoid switching from B2 to F1, especially soon after entry into the U.S. We suggest you contact an attorney for legal advice in this situation since there could be risks in reentering the U.S. after foreign travel down the line, even if the INS initially approves the change of status to F1.

h) I was working on F1 OPT but decided to quit the job, since I was offered a better position from another employer. Can I change jobs? And am I currently still in status?

You can work for any employer under F1 OPT, since you have been granted an Employment Authorization Card (EAD), to work in connection with the education obtained in the U.S. As explained in Overview: F1 Visas (Part 3 of 3) about F1 maintenance of status issues, you are legally considered to hold F1 status until sixty days past the expiration of your EAD card. However, you cannot work after the EAD expires. If you wish to remain longer and work in the U.S., an employer should file an H1B petition for you before that 60-day period ends, or consider another valid work status depending on your background and circumstances. You would be allowed to remain in the U.S., but not work, while the petition for the change of status is pending. Or you can leave the U.S. and wait abroad until the H1B or other non-immigrant petition is approved, and then apply for the H1B or other relevant visa to come back to the U.S. and take up the job. A consultation with an attorney can help with your planning if you are thinking of continuing your career in the U.S.