Over one million students from all over the globe were studying in the U.S. in the 2022-23 academic year. This represented a 12% jump from the prior year which was the largest increase in forty (40) years.1 Foreign students often turn to the U.S. to study because of its reputation as a leader in education, the flexibility of the U.S. educational system, and U.S. colleges' and universities' active recruitment of international students.2
Students often view this as a first step towards their immigration journey in the U.S. and look for ways to remain in the U.S. at the conclusion of their studies. A common pathway is for a student to transition to an employment-based visa and in particular, the H-1B classification.3 The H-1B classification allows foreign workers to live and work temporarily in the U.S. in positions that are "specialty occupations." These are professional positions that require at least a Bachelor's degree, or the equivalent, in a specific field for entry into the occupation.
As students prepare to transition from F-1 status to H-1B status, there are several factors the student needs to consider:
- Employment options while in F-1 status. Generally speaking, students in the U.S. studying in F-1 status are not allowed to work except in limited situations. Of these exceptions, two of the most common are Curricular Practical Training (CPT) work authorization and Optional Practical Training (OPT) work authorization. CPT work authorization is meant to be used for degree programs that have some sort of practicum or internship component. If a student engages in over twelve (12) months of full-time CPT work authorization they become ineligible for OPT work authorization.
OPT work authorization takes two (2) forms. The first option is to use it during the academic program to work over various breaks from school. The second, and more common approach, is to use it post-completion to work full-time for the sponsoring employer. If this approach is taken, all students can work for up to twelve (12) months post-completion and students in certain science, technology, engineering, and math (STEM) fields get an additional twenty-four (24) months.
During the OPT work authorization, students maintain F-1 status by working for their respective employers in positions related to their studies in the U.S. Many students use this time as an opportunity to identify an employer that will help them to transition to H-1B status in the future.
- Timing. The H-1B category is the most utilized employment-based category in the U.S. In FY 2024, the USCIS received over 780,000 registrations for 85,000 new slots available that fiscal year. As a result, students may find themselves not being selected during their first attempt. As a result, students who are working with employers pursuant to OPT and/or CPT work authorization should start conversations as early as possible as to potential sponsorship under the H-1B category. Since time in F-1 status is limited, by having the conversations early, students will have the highest probability of being able to transition from F-1 to H-1B status while in the U.S. without having to depart.
Additionally, students who are using post-completion OPT (either initial or STEM) will want to coordinate carefully with their H-1B employer to ensure the timing of the H-1B petition filing is such that it will allow for them to take advantage of things such as H-1B cap gap work authorization.4
- Area of study & area of employment. In order to be successful, the H-1B employer needs to show a strong correlation between the area of study and the work being performed. This requires the employer to carefully consider the position they are offering the foreign worker and take steps to ensure the duties assigned to the H-1B worker align with their area(s) of study.
The U.S. Department of Labor maintains a Standard Occupational Classification (SOC) Code system that classifies occupations in the U.S. Employers will want to work with immigration counsel to ensure that proper SOC Codes are assigned to each H-1B petition it files as this information will be used by the U.S. Citizenship and Immigration Services (USCIS) to determine if the position qualifies for the H-1B category as well as if the sponsored worker meets the necessary educational requirements.
Given the high-demand for the H-1B category, along with their interest in building their career and lives in the U.S., students should continue to take steps to use their post-completion OPT to identify potential U.S. employers and to work with them to transition to H-1B status.
Footnotes
1 Durrani, Anayat, International Student Numbers in U.S. Show Fastest Growth in 40 Years, U.S. News & World Report, November 28, 2023.
2 Durrani, Anayat, 3 Biggest Reasons to Choose to Study in the U.S., U.S. News & World Report, March 11, 2021.
3 While the most common classification, students are not limited to the H-1B classification for post-graduation employment in the U.S. Depending on the facts, students may also be eligible for classifications such as O-1 (Individuals of Extraordinary Ability or Achievement); TN (for certain Canadian and Mexican professionals); E-3 (for Australian professionals) among other employment-based categories.
4 H-1B cap gap work authorization allows a student in the U.S. in F-1 status to continue his/her employment through September 30 if a petition to change status from F-1 to H-1B is filed prior to the expiration of their OPT work authorization. This affords students, and their employers, continuity of work authorization in the U.S.
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