H1B Status Transition After Completion of F-1 D/S Status

As we approach the start of the U.S. government’s fiscal year 2011 (FY11), many MurthyDotCom and MurthyBulletin readers plan to transition from F-1, or other nonimmigrant statuses, to H1B status. October 1st is the start of a new fiscal year for the U.S. Citizenship and Immigration Services (USCIS). There are some important considerations for individuals transitioning to H1B status – particularly for F-1 students.

Background: H1B Cap, Cap Gap, and More

Shifting from F-1 to H1B status often requires planning and the ability to navigate somewhat complex immigration laws and regulations. The timing and logistics are determined in large part by the H1B cap and the cap-gap rule for F-1 students. [See these MurthyDotCom articles for more information on these topics: OPT Cap-Gap Benefit for F-1 Students in FY2010 (26.Dec.2008) and Clarification on STEM OPT Extension and Automatic H1B Cap-Gap Relief (03.Apr.2009).]

H1B Cap Numbers Still Available for FY11

As of this writing it is still possible for foreign nationals to obtain H1B status in FY11, even if they are subject to the cap. A source of confusion on this matter is that filing becomes allowable in April for work that may begin no earlier than October, causing some to think that they MUST file their cases in April or October. This is not correct. FY11 filings began April 1, 2010 and may continue until September 30, 2011 or until the cap numbers are gone, whichever comes first. Since, at this time, FY11 H1B cap numbers are still available under both the regular cap and the advanced-degree cap, it remains possible for prospective H1B employers to file H1B petitions in cap-subject cases.

What is the Deadline or When Will the Cap be Reached?

While it is impossible to predict when the cap will be met, we can compare this year to last year. In FY10, the advanced-degree cap was reached in October 2009; the regular H1B cap remained open until December 21, 2009. For FY11 cases are currently being filed. The cap numbers for FY11 are much lower than the cap count at the same time last year. While there does not seem to be an immediate danger of the cap being met or exceeded, based on last year’s trend, it is likely the rate of filings will increase in October and continue to steadily rise as the cap draws closer to being reached. MurthyDotCom and MurthyBulletin readers can keep up with the H1B Cap Count for FY11 on our website.

Current H1B Usage of Cap Cases for FY11

As of the September 3, 2010 H1B cap count update, the USCIS had received approximately 36,600 H1B cases under the regular cap, which has a limit of 65,000. The H1B cap count update also reflects that 13,400 H1B cases had been received under the advanced-degree cap exemption for FY11, which is limited to 20,000. This is well below the approximately 45,000 H1B visa numbers that had been counted against the regular cap for FY10 and 20,000 H1B cases had been received under the advanced degree cap by August 2009 for the FY2010 cap. A complete tracking of the H1B cap count updates for FY2010 is also available on MurthyDotCom.

Cap Subject H1Bs may be Filed with Flexible Start Date

The earliest start date that may be requested for a cap-subject petition under the FY11 quota is October 1, 2010, the beginning of the fiscal year. However, cap petitions may request any start date up to six months past the date of filing. In the past few years, many H1B cap petitions requested an October 1st start date. The filing for cap-subject petitions opens April 1st, which is the full six months prior to the first allowed start date of October 1st. In years past, it was important to file very early, as the number of cap cases filed on the first days April exceeded the total allowable quota or cap. As this is not currently the case, there is more flexibility with respect to the possible requested start date of H1B employment.

Since the FY11 cap has not been reached, start dates after October 1st may be requested. For example, if an H1B petition is filed on September 30, 2010, the filing can request a start date as late as March 30, 2011, or any date before that. If the cap is exhausted before the requested start date, it will not affect the petition as long as the petition was filed while H1B numbers still remain available.

F-1 Students May Delay Start of H1B Status

Some F-1 students may wish to start their H1B employment after October 1st in order to maximize their time in optional practical training (OPT). Since employers have flexibility these days with the selection of H1B start dates, as explained above, it is often possible to avoid cutting the OPT time short. For instance, if an F-1 student has OPT until March 2011, the student’s employer could request an H1B employment start date of March 2011 to maximize the full OPT time. The student may continue working in the OPT employment until the effective date of the approved H1B change of status. The H1B employer is not obligated to pay the H1B required wage until the effective H1B start date. More information on filing tips for FY11 H1B petitions is available in our December 04, 2009 article, Options for New H1B Filing in FY11, available on MurthyDotCom.

Students considering start dates other than October 1st, should verify that they will have employment authorization and/or status through the requested H1B start date. Decisions regarding H1B strategies, and details such as start dates should be discussed with a knowledgeable immigration attorney.

Conclusion

The continued availability of H1B visa numbers for FY11 provides more options and flexibility for F-1 students. Those who have additional time left in OPT may wish to delay the start of their H1Bs beyond October 1st. The option to file H1B petitions against the FY11 cap remains available, as of this writing.

We provide our readers with useful information regarding significant developments related to the FY11 cap count, so that these matters can be discussed with an attorney and an informed decision can be made. The Murthy Law Firm is available to assist employees and companies in filing H1B cap-subject petitions and navigating the complex H1B process.

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