Transition Concerns from F-1 to H1B

We at the Murthy Law Firm frequently receive queries from individuals transitioning from F-1, Optional Practical Training (OPT) to H1B. Some of the most difficult problems are faced by individuals who, after waiting for months, find that the H1B job promised to them is no longer available. Some of the concerns facing these individuals are discussed here for our readers.

Background: Change of Status on October 1st

As regular MurthyDotCom readers are aware, October 1st is the start of the fiscal year (FY) for the federal government, and hence for the U.S. Citizenship and Immigration Services (USCIS). For many, October 1st is also the first day of their H1B employment. When all goes well, this is a seamless transition from F-1 OPT, often under the cap-gap provisions, to H1B.

What Happens in Case of Job Termination?

Given the months that elapse between the H1B cap-subject filings and October 1st, however, not all individuals experience an ideal, easy transition. For some, the days before or immediately after October 1st bring news of job termination or insecurity with the H1B sponsoring employer. This is a serious problem.

Most H1B filings request a change of status that, if approved, is reflected in an I-94 card attached to the approval notice. When such a change is approved, one’s status changes automatically on the day the H1B petition becomes valid – typically October 1st.

Option 1: Data Fix in USCIS Database

As explained in our NewsBrief, USCIS Updates Q & A on Cap-Gap Extensions (22.Apr.2011), one option for some students facing loss of their H1B-sponsored employment is a “data fix.” This option is available only if the employer requests a withdrawal of the approved H1B petition prior to October 1st. The USCIS does not have to act on this request before October 1st, but the employer must transmit this request, in writing, to the USCIS prior to that date.

In those cases where the employer acted to request the withdrawal of the H1B petition prior to October 1st, then OPT can be reinstated by a data fix completed by the Designated School Official (DSO). This, of course, presumes that the student still has time remaining on her/his OPT. It also leaves the student in a rather uncertain position as s/he waits for the USCIS to acknowledge the employer’s request, and requires transparency between the employer and employee that does not exist in all cases.

We wish to emphasize that the return to F-1 OPT status does not happen unless the steps described above take place. It is not enough if one simply does not begin the H1B employment – or never even receives the H1B approval from the employer. It is not enough even if the employer withdraws the H1B petition. Each step described above must occur, and the employer’s withdrawal of the H1B petition must be transmitted prior to October 1st.

Option 2: New Employer Filing the H1B (Likely Cap Exempt)

Another potential option in such cases is an H1B filing via a new employer. While it is not so easy to find new employment on short notice, such students sometimes have OPT employment with employers other than the H1B sponsor. These employers may wish to continue the employment and could file an H1B petition to do so. The H1B filing through a new employer generally would not be considered cap subject.

Transition to the new employer creates some complications and logistical challenges, as well as status concerns. Such a transition should occur promptly if the original H1B-sponsoring employer is clearly unable to offer appropriate employment on the H1B start date.

There may be problems obtaining an extension of status (EOS) or change of status (COS) in the United States unless the new H1B employment start date is also October 1st of the same year. If the EOS or COS is not approved, it is possible that the H1B petition could be approved for consular processing. This would make it necessary to leave the U.S. in order to apply for a visa “stamp” at a U.S. consulate abroad prior to reentering the country.

Other Options Include Family-Based Filing

Above are the primary options available to most students facing these difficulties. For some, there may be options to change status via a family member. If available, this alternative may allow the individual to remain in status or to regain status. This transition might require departure from the U.S. and issuance of a visa “stamp” at a U.S. consulate. Depending upon the facts, such individuals may be able to still qualify for H1B status at a later time through a new employer without the need to wait for another cap season, if s/he was previously counted against the H1B quota. Still others may wish to explore the possibility of returning to a student status through a new program. This option, also, may require departure from the United States and a visa application at a U.S. consulate.

Conclusion

Individuals facing employment loss or uncertainty during the transition from F-1 OPT to H1B should seek prompt legal advice. It is important to assess options and to weigh short-term and long-term risks in these situations. Murthy Law Firm attorneys are available to assist those who are facing problems such as those discussed here.

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