F1 to H1B: An Immigration Lawyer’s Advice

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F1 to H1B: How to Make the Switch

This article covers how to go from an F1 to H1B visa. Many international students use this process to stay and work in the U.S. when they graduate. We’ll teach you everything you need to know about switching from F1 to H1B, including:

Note: If you want to stay in the U.S. permanently, you may also want to check out our advice on how to go from F1 to green card.

Before we get to the two main ways to change status from F1 to H1B, make sure you know the basics.

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What is an F1 visa?

The F1 Visa is a visa that lets non-citizens attend school in the U.S.  Students can achieve F1 status in two ways:

  • consular processing, and
  • change of status.

Consular processing refers to seeking a visa from outside the U.S., at a U.S. consulate or embassy.  Change of status refers to getting the status from within the U.S.

Here are few key points about the F1 visa:

  • An approved school must sponsor you to come to the U.S. by issuing a Form I-20.
  • To maintain F-1 status, you must attend the school that issued you a Form I-20.
  • F-1 status does not authorize you to work in the U.S., unless you get permission. ( This permission is know as Curricular Practical Training – CPT) or Optional practical Training – OPT)

What is an H1B visa?

The H1B visa is a temporary work visa for non-citizens to work at a U.S. company in a particular job. The job must be in a “specialty occupation.” A specialty occupation is a job that the government believes typically requires a 4-year college degree. For example, a job as an accountant typically requires a college degree, and would qualify as a specialty occupation. By contrast, a maintenance or construction job, is not a specialty occupation, because you can qualify for it through experience only.

A few important reminders about the H1B Visa:

  • You have to work for the company that sponsors you.
  • You are not allowed to quit or change jobs without permission from immigration officials.
  • The company must pay you a fair salary.  What is fair depends on what type of work you’ll do and in which city you’ll do it.

Whether the job offered is in a “specialty occupation” depends on the job description and not the job title.  In other words, a company cannot say you’ll be an accountant if you are going to do the work of a receptionist.

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F1 to H1B Change of Status

Now that you understand what each visa is, let’s review how to go from F1 to H1B.  As mentioned above, there are two ways to go from F1 to H1B.

The first is where you apply from within the U.S., by applying for “change of status.” We’ll review that way first.

Change of status is simply where a noncitizen present in the U.S. goes from one immigration status to another. To change status from F1 to H1B, you have to make an application to United States Citizenship and Immigration Services (USCIS).

Here’s what you have to do.

What are the requirements to change status from F1 to H1B?

1. You must be in valid F1 status.  This means that you have done all that’s required to maintain your status.  You have taken the minimum number of classes, stayed in school and not worked without permission.  To check if you’re in valid F-1 Status, contact your school’s DSO.

2. The job offer must be from a U.S. company.

3. The job offer must be in a “specialty occupation.” A specialty occupation is a job that the government believes typically requires a 4-year college degree. To decide this, the government looks at the job description and not the job title.

4. The job offer must be “bona fide.” That means it has to be a job offer from a company operating and can afford to pay you for the next three years. (Three years is the initial length of time you get on an H1B).

What forms, fees, and evidence are required for an F1 to H1B Change of Status?

Forms: The form I-129 is used to change of status from F1 to H1B. This form must be signed by an authorized individual at the company petitioning for your H1B visa.  An authorized person is one in charge of hiring employees.  USCIS requires no form other than the I-129 . When you apply for a change of status, the form acts as both the petition and application for change of status to go from F1 to H1B.

Fees: There are several fees to file the form I-129. The base fee for the I-129 is $460. There is another fee for $750 or $1500 depending if the U.S. company petitioning you has more than 25 employees. There is a $500 fee for Fraud Prevention and Detection. There is another $4000 fee that is required but that is only in very few circumstances.

FormFees
I-129$460
ACWIA Fee$750-$1500
Fraud Detection Fee$500

Evidence: You should submit the following evidence with your I-129 to go from F1 to H1B:

  • Copy of your F1 Visa
  • Copy of your I-94
  • Copy of all your I-20s following your most recent entry
  • Copy of your transcript and evidence you graduated
  • Job offer letter from the U.S. Company, including a job title, job duties, and your salary
  • Labor Condition Application (LCA)
  • Copies of the certificate of formation of the U.S. Company
  • Evidence that the company exists, i.e., website, tax returns, etc.

How do you go from F1 to H1B without OPT?

There are no bars to switching from F1 to H1B without Optional Practical Training (OPT). But be careful. Since you need to demonstrate that you graduated with a degree that qualifies you for the job, don’t apply too early. Normally, OPT occurs after you’ve graduated so in most cases you’ll apply for your H1B during OPT.

H1B Consular Processing

The second way to go from F1 to H1B is through consular processing.

Consular Processing is where you get a visa from outside of the U.S.  So H1B consular processing just refers to the way you apply for an H1B visa when you’re outside the U.S. This process is similar to any visa processing, like the way you first sought your F1 visa. In F1 visa consular processing, you completed the form DS160, scheduled an interview at the nearest U.S. consulate and provided the consulate officer with the documents they requested.  You’ll do something similar for your H1B.

Note, consular processing is sometimes referred to as F1 to H1B stamping or the H1B stamping process. If you see mention of visa “stamping,” just know it’s the same thing as consular processing. They sometimes call it stamping since the H1B visa is “stamped” inside your passport. The H1B visa stamp is what you’ll show immigration officials when you enter the U.S. to begin your job.

What are the requirements for H1B Consular Processing?

There are two parts to the process.

Part One: the U.S. employer will file the Form I-129 for you, and USCIS has to approve it before you can move on to part two. The employer still needs to provide the documentation listed above, including an LCA, job offer letter and proof it’s currently open and operating.

Part two: if USCIS approves the Form I-129, you must then complete a visa application and schedule an appointment at a U.S. consulate or embassy. At the consulate, the officer may ask you for the same documents that were submitted with the Form I-129. The officer may also ask for your documents such as past visas and evidence of your college degree.

What forms, fees, and evidence are required for H1B Consular Processing (i.e. H1B Stamping)?

Forms: The company sponsoring you needs to file a Form I-129. If approved, you will need to complete the DS-160 application and schedule yourself for an interview at a consulate or embassy in your country.

Fees: The base fee for the I-129 is $460. There is another fee for $750 or $1500 depending if the company petitioning you has more than 25 employees. There is a $500 fee for Fraud Prevention and Detection. There is another $4000 fee that is required in rare situations. For the H1B visa, the fee is $190, which must be paid before you schedule your interview at the U.S. consulate.

Evidence: For your visa interview, you should bring:

  • A copy of the I-129 approval notice from USCIS
  • A copy of the form I-129 and all documents submitted to USCIS
  • All visas ever issued to you, if applicable.
  • Evidence of your education including official transcripts
  • The appointment letters
  • The DS160 confirmation page
  • Evidence that visa fee was paid

 

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Denials of F1 to H1B Applications

How should I handle a denial of my application for change of status from F1 to H1B?

When you go from F1 to H1B, there is a chance that your case will not be approved by USCIS. If your change of status is denied, then there is an appeals process. It’s best if you discuss that process with an experienced immigration attorney to understand the matter. Remember, if you were depending on the approval to be approved from F1 to H1B to be legal in the U.S. then it is important not to wait. In other words, if USCIS does not approve you to go from F1 to H1B then take action right away.

How should I handle a denial of H1B consular processing?

If you are denied during consular process, it’s important to understand why. If you are consular processing to go from F1 to H1B then you should already have an approved Form I-129. This means that it’s more likely there was an issue with your history and background, and not the job offer itself. Sometimes, a visa applicant can be accused of past visa violations or crimes that make them ineligible. That said, ask the officer as many questions as you can on why you were denied. Then take that information to an experienced immigration attorney to see if anything can be done.

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