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CHANGING STATUS FROM F1 TO H1B, AFTER OR BEFORE OPT EMPLOYMENT AUTHORIZATION

2020-04-14
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An OPT or Optional Practical training is a bit different from CPT or Curricular practical training. This is a direct temporary employment status for international students with F1 visa status and is directly related to their field of study. A person can be eligible for an OPT employment authorization either before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion).  An Eligible student can apply to receive up to 12 months of OPT employment authorization.

After or even before completion of the OPT employment authorization period a student can request a change of status from F1 to H1B, which is a more permanent form of employment status in the US . The petition has to be necessary by the current employer or any prospective employer.

This change in the legal status of the person from F1 to H1B can have its own complications; some of the critical cases which somebody may come across is given below:  

A1. If the student has an approved H-1B petition and change of status but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?

Yes. The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect. The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date. This prevents the student from changing to H-1B status. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved before resuming employment.

A2. In cases where a student is authorized to work OPT past the H-1B change of status effective date, can the student continue working on OPT if a request to revoke/withdraw the H-1B change of status is submitted to USCIS?

Yes. If the H-1B revocation occurs before the H-1B change of status effective date, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

However, if the H-1B revocation occurs on or after the H-1B change of status effective date, the student will need to stop working before the H-1B change of status effective date, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.

NOTE: This is NOT a cap-gap situation since the student has an EAD authorizing OPT beyond the H-1B change of status effective date.

A3. Do students remain in valid F-1 status while the request to change the OPT end date is pending?

If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be invalid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

We hope this FAQ has been useful. The process of changing your status from F-1 to H-1B can be a long and confusing one. Also, every application needs to be received within specific time frames. Similarly, the H-1B application and petitioning process is a complicated one especially with the introduction of the electronic registration that is to be used for the first time this year. Both the electronic registration and the subsequent H-1B petition must be handled on time. To ensure you are not found wanting, seek the counsel of an experienced immigration lawyer. The Law Offices of Prashanthi Reddy is ideally prepared to help you through the entire change of status process.

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