USCIS Update on H-1B Cap Electronic Registration System.

For many international students in the U.S on an F-1 visa, a major goal is to secure an employer for H-1B visa sponsorship. In order to change nonimmigrant visa status from an F-1 to an H-1B, the student can elect to try and go directly to H-1B status or go from F-1 OPT (Optional Practical Training) to H-1B. Many choose the F-1 OPT path in order to have an interim phase where they have the opportunity to get training and  experience while searching for an H-1B employer willing to sponsor.

Transitioning from F-1 OPT to H-1B

Finding an employer to sponsor an H-1B visa can feel like a huge victory for an F-1 OPT visa holder. Unfortunately, there is no guarantee that an employer will back out in what can be months of transition time between going from F-1 OPT status to H-1B status. There is no easy way to say this, but having your H-1B sponsoring employer back out is a big potential problem. if this should happen however you are  not left without any options.

You may try to attempt what is referred to as a “data fix” in the USCIS database. This option is only available if the employer requests a withdrawal of the approved H-1B petition before October 1st. USCIS does not have to act on the request prior to the first of October, but the employer must send the request prior to that date. When an employer requests the withdrawal of the H-1B petition in time, OPT may be reinstated by a data fix that is completed by a Designated School Official. This option assumes that the student still has time remaining on his or her OPT.

Another option for those facing job loss while transitioning from F-1 OPT to H-1B is for the applicant to try and find a new employer to sponsor the H-1B visa. Finding a new employer sponsor within a limited time frame is a difficult, but not impossible, thing to accomplish. The H-1B filing through the new employer would not usually be considered cap-subject. The transition should be fine if the original H-1B sponsoring employer has clearly demonstrated that they are unable to offer adequate employment prior to the H-1B start date.

Another option may be to apply to change the status to a visitor. Generally, individuals can request a change of status to visitor status using an I-539 Change of Status Application. This may give sufficient time to allow for consideration and pursuit of other options.

If you lose your job during this transition time, you may even need to consider changing your status via a family member. Family-sponsored visa options will at least make it possible for you to remain in legal status or to regain legal status. This option, however, may require you to leave the U.S. and have a visa “stamp” issued at a U.S. consulate. Depending on your specific situation, you may still be able to qualify for H-1B status at a later date and through a new employer without having to wait for another cap season if your application was previously counted against the H-1B quota.