Clarity and Strength in Immigration Law

Six Questions to Ask for Continuing Employment on H-1B

Do you have a top-notch employee you’d love to keep, but are unsure how to do it because they are a foreign student? Read on for tips on employing an international student with confidence!

1.     Is the student working on CPT or OPT?

CPT stands for curricular practical training, and is typically used for internships or short-term work experiences required for a course that the student is taking. The CPT student is usually still in school, and has not yet graduated. CPT employment will be for a limited duration, and it may not be possible to extend this employment.

OPT stands for Optional Practical Training. The period of OPT allows the student to work in a field related to his field of study for a year (or sometimes more) using an EAD – employment authorization document. The OPT is usually completed at the end of the course of study after the student has graduated from a US institution.

A student may work for an employer using OPT or CPT without any specific sponsorship by the employer.

2.     If the student is working in OPT, when does the work authorization end?

The OPT student is authorized to work only until a certain date (as listed on the Employment Authorization Document, or EAD). It is critical that both the student and the employer be aware of this date, and make plans to be sure the student can continue working, if desired. The options for continued employment are:

  • Extend the OPT: If the student is a STEM (science, technology, engineering and math) major, and meets certain other requirements, the OPT can in some instances be extended for another 17 months. After this extension though, no further extension of the OPT is available unless the student completes another degree on a different level.
  • Sponsor the student for H-1B status.

3.     Are you willing to sponsor the student for H-1B status?

The Sumner Immigration Law team leverages technology and highly customized systems to streamline the H-1B preparation process for employers and employees alike. However, the employer should be aware of certain obligations in hiring an H-1B employee, including:

  • The employer must pay the employee the prevailing wage (determined by government or commercial survey, and based on job title and location), or the actual wage (wage paid to other employees in a similar position and with similar credentials).
  • As part of the LCA process, the employer must post a notice of filing in a conspicuous place to notify other employees that the H-1B petition is being filed. The immigration attorney will prepare the notice for you, but by regulation, it must list the wage that the H-1B employee will be paid (or at least a salary range that includes the wage that will be paid).
  • If the H-1B employee’s employment is terminated before the end of the H-1B status, the employer must provide a one-way ticket to the employee’s home country (if so requested). 

The Sumner Immigration Law team will assist you in making sure you are fully compliant with all H-1B program requirements.

4.     If you are willing to sponsor the student for H-1B status, when can you file the H-1B petition, and when will the OPT end?

There is a limit of 65,000 H-1B petitions available every year, and an additional 20,000 for US master’s degree holders. This is frequently referred to as the “H-1B cap.” The H-1B cap opens every year on April 1 – that is, April 1 is the first day each year that an employer can file an H-1B petition that is subject to the H-1B cap. If the H-1B petition is approved, the H-1B employee can begin working in H-1B status on October 1 of that year.

5.     If the OPT will end before the H-1B start date, will the student be covered by the H-1B “cap gap”?

So what about the “gap” between the time of filing, and October 1? If a student is working in OPT status, he can take advantage of something called the “H-1B cap gap.” For example, let’s say that Company A has hired Sam, a student working in OPT who needs H-1B sponsorship. Sam’s OPT will expire May 30th. Company A has decided to file an H-1B petition on April 1 for Sam, but Sam cannot work in H-1B status until October 1 (assuming the petition is approved). The H-1B cap gap would allow Sam to keep working from the end of his OPT through October 1, assuming the H-1B petition is filed before his OPT expires, and assuming the H-1B petition is not denied or withdrawn. Note that the H-1B cap gap only applies if the student’s OPT is still valid at the time the H-1B petition is filed. The H-1B regulations provide that the work authorization of the student working in OPT is automatically extended if an H-1B petition (change of status) is timely filed on behalf of that student. Timely filed means that it is filed before the expiration of the OPT.

6.     Does the student need to travel internationally? Travel and Change of Status

Students frequently want to travel internationally during the summer. While this is generally permitted, if the student has an H-1B petition pending and a change of status was requested (meaning a request to change the student’s status from F-1 to H-1B), the student should not travel while the H-1B petition is pending. If the student travels, the change of status request may be considered abandoned and denied. The rest of the petition would be approved (assuming it is otherwise approvable) but the change of status would be denied. If your OPT employee needs to travel while the H-1B petition is pending, please check with an experienced immigration attorney to develop a strategy.