H1B Cap Season and OPT STEM Coordination: Try H1B Twice

by Sheela Murthy et al.

As the H1B cap filing season draws near, many F-1 students have concerns about how to best coordinate their eligibility for Optional Practical Training (OPT) with the timing of their employers' cap-subject H1B petitions. Our examination of this matter, as it applies to F-1 students who have completed a degree in science, technology, engineering, or math (STEM) and, thus, are eligible for an additional 17 months of OPT, is presented for the benefit of MurthyDotCom and MurthyBulletin readers. As we explain, there are potential strategic benefits to having the H1B petition filed early enough to be able to have work one's status under OPT span two H1B cap seasons, if needed.

H1B Cap Season

April is rapidly approaching; the time of year when the U.S. Citizenship and Immigration Services (USCIS) will begin to accept cap-subject H1B petitions for fiscal year 2013 (FY13). As our long-time readers know, the USCIS begins to accept H1B petitions each year six months prior to the beginning of the federal government's next fiscal year, which begins on October 1st. A more detailed description of the H1B cap can be found in our February 17, 2012 MurthyDotCom NewsBrief, FY13 H1B Cap Season: Time to Get Started!

F-1 OPT and Work Authorization

Many F-1 students with degrees in STEM disciplines can obtain the standard 12-month period of post-completion OPT, as well as an additional 17-month extended OPT period, if the employer participates in the E-Verify program. This provides a total of 29 months of OPT. Information on STEM OPT requirements may be found on MurthyDotCom. See F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis (22.Apr.2008) and SEVP Updated Policy Guidance on OPT Matters (08.May.2009).

Transition from F-1 OPT to H1B

A qualifying F-1 student may wish to consider requesting his/her employer to file the H1B petition in order to continue the U.S. employment on a more long-term basis. The decision regarding the filing of the H1B petition should be considered early in the OPT status. The student should not wait until s/he is running out of OPT time. For many, this means timing the H1B filing so that it precedes exhaustion of all STEM OPT time. One who has waited until near the end of the OPT period may need to try maximizing allowable benefits under the cap-gap provisions. Details regarding these provisions may be found in our NewsBrief, USCIS Updates Q&A on Cap-Gap Extensions (10.Feb.2012).

Importance of Filing H1B While in F-1 OPT Status; Avoid Waiting Until OPT Grace Period

The benefits under cap gap vary depending upon whether the H1B petition was filed during the individual's 60-day, post-OPT expiration grace period or during the validity of the OPT. Filing during the grace period can extend the grace period; filing during the validity of the OPT, can extend the OPT work authorization.

Example:

Shalini Student has STEM OPT that expires April 30, 2012. Shalini needs to urge her employer to file an H1B cap case on her behalf in April 2012, requesting a start date of October 1, 2012. An April filing will, under the cap-gap provisions, allow her to continue to live and work in the United States between her OPT expiration date and October 1, 2012. However, in the event that Shalini's employer files the H1B petition after April 30th (but during her 60-day grace period), Shalini will be able to remain in the United States, but she will not be able to work until October 1, 2012.

Shalini is an example of someone who has ended up in need of an H1B petition filing at the very end of her OPT. She has to hope that her employer files during April and that the H1B petition with the change of status within the U.S. is approved. She is fortunate that her OPT extends into the H1B filing period in April, otherwise, her options would be even more limited, as she would have no way of qualifying for extended work authorization under cap gap. It is best to try to avoid this type of scenario.

Filing Early Has Advantages (and Some Disadvantages)

A student on OPT should analyze his/her situation with the help of a qualified immigration attorney as the cap season approaches. It is important to consider the advantages and disadvantages of having the employer file an H1B cap-subject petition at various points in time. The student should strive to have the first H1B case filed when there is enough OPT time to carry her/him through to another H1B season, if needed; though this may have its own set of disadvantages in some cases.

Example:

(Advantage):
Swati Student has OPT that expires June 15, 2012. She is eligible for a 17-month STEM extension, which would allow for OPT through November 14, 2013. Her employer is very happy with her work, and is interested in having her employment continue. If Swati's employer files an H1B case in April 2012, it would have to request a start date in October 2012. This would mean losing out on more than a year of OPT and starting H1B status earlier than is legally required. The advantage to considering an FY13 filing is that there would be another chance to obtain H1B status under the FY14 quota, if something were to go wrong with the H1B cap-subject case.

(Disadvantage):
The potential disadvantage in this situation is if the STEM employer terminates Swati's employment or has a layoff after the H1B petition is approved for Swati, if this occurs after October 1, 2012. In that event, Swati Student cannot simply revert to F-1 OPT status and join another employer who is registered in the E-Verify program on the EAD issued incidental to the F-1 OPT status. So, if there is a risk of job termination or layoff, it may be worthwhile for Swati Student to remain in F-1 OPT status, as that provides her with greater flexibility to change jobs and/or employers without requiring H1B sponsorship until April 2013, in this example.

Employer Must Register Under E-Verify

As mentioned, STEM OPT requires an employer to register under the E-Verify program. In our example, if Swati's employer does not participate in E-Verify, the H1B filing is needed to allow her to work after her initial OPT expires on June 15, 2012. In that case, the H1B would have to be filed on or before June 15, 2012 to provide extended status and work authorization under H1B cap-gap provisions.

Even if Swati's employer is E-Verified, having the H1B cap-subject case filed and, hopefully, approved could potentially provide a benefit, if it becomes necessary to change employers. A change of employers for one in STEM OPT is limited only to employers who have registered under the E-Verify program. A change of employers when in H1B status is only limited by the willingness of an employer to file the H1B petition. While having OPT generally facilitates finding employment, as it requires less involvement in immigration matters than an H1B, the pool of potential employers is more limited in STEM OPT.

Monitor the H1B Cap and Usage of H1Bs

Swati and her employer have a number of options. Assuming the employer is E-Verified, it would not be necessary to file the H1B case on or before her June 15, 2012 OPT expiration date. However, they may want to keep their eyes on the H1B cap count and consider filing later in the cap season, timing things so that there is a second chance to file the H1B petition, if needed.

Example:

If Swati and her employer observe that the FY13 H1B cap is starting to fill around August 2012, they may decide to file the cap-subject H1B petition by September 1, 2012. This case could request a start date six months in the future, which would be March 2013. That would mean that Swati would lose some STEM OPT time, but, if something were to go wrong, she would have time to try again in FY14. That is, she would have STEM OPT until November 2013. Her employer could file again in April 2013, requesting an October 1, 2013 start date. This second filing could even be made later in 2013, as long as cap numbers remain available.

Trends in Cap Usage

The last time that the cap was reached in the initial filing period was in FY09. In that fiscal year, the cap was exceeded during the allowed first-five-business-day filing period in April 2008. More recently, the economic recession and other factors have led to much longer cap-filing seasons. However, it is important to remember that in better economic times the H1B cap filings far exceeded the available cap numbers during the first days of filing.

While there are no indications that the FY13 filings will resemble FY09, it is important to be aware that, as the economy slowly recovers, there has been an incremental uptick in H1B demand. The H1B cap for FY12 was reached on November 22, 2011, almost two months earlier than in the prior fiscal year. Students in OPT should monitor the movement of the H1B cap numbers to get an idea of how demand is trending. If the numbers are going quickly, it may be time to move forward with the H1B filing.

Wisely Using H1B Time vs. Inability to File H1B Cap Case

Historically, there was a concern about maximizing the usage of one's OPT time to avoid wasting precious H1B time by changing status prior to the OPT expiration. While this still should be considered, it is less vital than it was in the past.

Saving a few months of H1B time is less important now than filing early enough to allow for refiling the H1B if problems arise. This is because, under the American Competitiveness in the Twenty First Century Act (AC21), it is possible to extend one's H1B status beyond the standard six-year limit. Such extensions require an employer willing to file a permanent residence ("green card") case within the required timeframes, as discussed in numerous articles available on MurthyDotCom. Consideration of these requirements is part of one's immigration planning after the transition to H1B status, if s/he hopes to remain in the United States beyond the H1B.

Conclusion

A number of factors must be balanced when determining the best time to file an H1B case for an individual who is eligible for STEM OPT. Given the numerous considerations, and the uncertainty regarding usage of cap numbers, one should not allow a cap year to go by without careful consideration of the benefits of filing. The Murthy Law Firm can help establish a strategy best suited to each specific situation.

This article originally appeared in Murthy Bulletin on www.Murthy.com Reprinted with permission

About The Author

Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Murthy Law Firm, which consists of approximately 85 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Murthy Law Firm handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.

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