Changing Status From F-1 Student Visa to H-1B Work Visa

Steps that the immigrant student and the employer will have to take in order to obtain H-1B worker status within the United States.

By , Attorney

If you are a foreign student in the U.S. who is interested in getting a temporary visa to work in the U.S. after graduation, an H-1B visa/status is a likely possibility. This article will focus on the steps to take to switch from F-1 to H-1B status without leaving the United States.

The process will be largely in the hands of your future (or possibly present) employer, especially at the beginning. In particular, your prospective employer will need to submit a petition to U.S. Citizenship and Immigration Services (USCIS) on your behalf asking to change your status to H-1B. Despite this, it is important for you to have a general understanding of how the process works so that you can adequately prepare the supporting documents and effectively communicate with your employer about your and your employer's rights and responsibilities.

Initial Steps: Determining H-1B Eligibility And Submitting The Labor Condition Application

You must first get a job offer in the United States. Then, your employer must determine your eligibility for H-1B status. To be eligible, the position must be a professional one, and the employer must plan to pay you the prevailing wage.

A professional position is one that requires, at minimum, a bachelor's degree in a specific field of study, called a "specialty" in H-1B visa terminology. The prevailing wage is an amount that is determined according to U.S. Department of Labor (DOL) regulations.

If the employer cannot satisfy either of these requirements, it cannot sponsor you for H-1B status. If the employer can satisfy these requirements, it has to submit a Labor Condition Application (LCA) to the Department of Labor (DOL) and comply with LCA posting requirements as set forth by law. The employer cannot move forward with the H-1B petition until the DOL certifies the LCA .

Also see Improving Your Chances of Getting an H-1B Visa.

Registering to Submit an H-1B Petition

Because of high demand for H-1B visas or status, and an annual cap on how many can be allotted for most types of jobs, USCIS has had to take measures to deal with all the incoming applications. In recent years, it has utilized various lottery or pre-registration methods to limit the number of employers submitting H-1B petitions. Assuming your job is subject to this cap, your employer will likely have to register in advance, to make sure that USCIS will even be open to receiving a petition on your behalf.

Also see How to Find a Cap-Exempt H-1B Job.

Preparing Supporting Documentation for H-1B Petition

The employer has to submit several supporting documents with the H-1B petition. These include a number of documents that you, the F-1 student, will have to provide, specifically:

  • copies of your college or university degree and transcript
  • copies of all your previously issued I-20 forms
  • copy of your Employment Authorization Document (EAD) if you are currently employed through Optional Practical Training (OPT), and
  • copies of your I-94 Arrival/Departure Record, passport biographic page, and F-1 visa stamp.

The employer will have to provide the following supporting documents:

  • copy of the signed and certified LCA
  • a support letter that provides information about the job requirements, duties, and salary (which letter must also state the period of time the employer wishes to sponsor you in H-1B status), and
  • if applicable, an itinerary with names and addresses of customers or clients, where you will perform your work or visit as part of your job.

Preparing Required Forms and Filing Fees to Send USCIS

The employer will need to prepare and submit the following forms to USCIS for the H-1B petition:

  • I-129 Petition for Nonimmigrant Worker, requesting a change of status from F-1 student to H-1B worker
  • I-129 H Supplement
  • I-129 Data Collection Form
  • I-907 Request for Premium Processing (required only if the employer wishes to expedite the processing and is willing to pay the premium processing fee).

The employer is required to pay an H-1B filing fee ($460 as of late 2021, but check the I-129 page of the USCIS website for any updates), the ACWIA fee (required for most private sector employers and determined by the number of employees, either $750 or $1,500), and the fraud prevention and detection fee ($500).

The DOL regulations require the employer to pay virtually all H-1B fees and costs.

If the employer or F-1 student wishes to expedite processing of the H-1B petition, it might be possible for either the employer or employee to pay the premium processing fee for this, which was $2,500 as of late 2021. One example of when it might be possible for you to pay the premium processing fee is when you need the petition approval to travel and get a visa.

All fees must be paid separately, with checks or money orders made payable to U.S. Department of Homeland Security.

Although the filing fee and ACWIA fees can be included in one check (as in, $1,960 for the combined $460 filing fee and $1,500 ACWIA fee), USCIS advises against this, so as to avoid a possible filing rejection if the ACWIA was not required, for example.

Filing the H-1B Petition With USCIS

The employer must submit the nonimmigrant worker petition and supporting documents in duplicate to the appropriate USCIS Service Center. USCIS's Web page for I-129 petitions indicates the Service Center for various types of H-1B petitions.

If you have dependents (spouse and children) requiring a change of status to H-4, you will have to make sure to prepare and submit an I-539 Application to Extend/Change Status along with the H-1B petition.

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