The Challenging Transition from an International Student Visa to an H-1B: A Primer
Foreign students bring their diverse talents to our classrooms and our labor force. However, the United States immigration system is designed around sending students back to their foreign residences at the end of their academic experience. Even though the majority of international students do return to their home countries or migrate elsewhere at the conclusion of their program, some decide to continue their residency in the United States, joining our labor force and transitioning to a different temporary visa. Foreign students who find employment opportunities in the United States and want to contribute their talents to the U.S. labor market follow a difficult road from student visa to an employment visa. The process is often complicated, lengthy, and hard to navigate. Many foreign students who engage in the U.S. labor market are filling key job shortages that benefit our economy. By making it difficult for talented international students to enter the labor force, our immigration system discourages qualified individuals, educated and trained in the United States, from contributing to the country permanently.
Student Visa Origins and Eligibility
Foreign students must utilize F, M, and J visas, which are part of the Student and Exchange Visitor Program, to pursue academic enrichment in the United States. The most common of these is the F-1 student visa, which was introduced in the Immigration and Nationality Act of 1952. According to the INA, any bona fide student can seek to enter the United States temporarily on an F-1 visa to pursue a course of study at an accredited university or college. The M-1 visa permits students to enroll in vocational training or other nonacademic programs. The J-1 visa is the second-largest category of student visas, which was introduced under the Fulbright-Hays Act of 1961 to encourage educational and cultural exchange between participants and the people of the United States.
To qualify for an F or M visa, international students must meet certain eligibility criteria. Foreign students need to be enrolled in either a university program, a language training program, or a vocational institution in the United States. Student visas are only granted to those who are enrolled as full-time students at a higher educational institution, are proficient in English or are enrolled in English language classes, have sufficient funds to support themselves during their course of study, and have a permanent residency in their home countries, which they have no intention of giving up. An F-1 student’s full course of study may include only one online or distance learning class per term or semester. Students on M-1 visa are not allowed to enroll in any online classes. Students applying for a J-1 visa are selected based on their program eligibility criteria and must possess sufficient English language proficiency to participate in their desired programs.
International students seeking F and M visas are required to present an I-20 form during the visa process that outlines that they are legally enrolled in a program in the United States. I-20s are issued by universities and colleges authorized by the government, to foreign students who have demonstrated their merit based on SAT scores, TOEFL language assessment tests, and their academic records. Students seeking a J-1 visa are required to present a DS-2019 Certificate of Eligibility, issued by the sponsoring organization approved by the Department of State, to the U.S. consulate or embassy during visa processing.
The number of international students in the United States has steadily increased since the 1950s. As seen in Figure 1, in the last decade, the total number of international students has gone from 671,616 in the academic year 2008-09 to over 1 million in the 2018-19 academic year, and from 3.5% of the total U.S. higher education enrollment to around 6%. However, recent data indicates that new student enrollment at U.S. academic institutions has decreased since 2017. In the academic year 2017-18, new international student enrollment fell by 7% and in the following academic year, it decreased by 0.9%.1
Figure 1. International Students and Percentage of Total U.S. Enrollment 2008-2019
Changes to the Student Visa Post 9/11
In the wake of the September 11, 2001, attacks, the Department of Homeland Security instituted immigration policy measures with added screenings for international students. In 2003, DHS launched the Student and Exchange Visitor Information System (SEVIS), a web-based portal that tracks and monitors schools and international students who are pursuing their degrees in the United States. Authorized in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, SEVIS was finally implemented as a mandate in the Patriot Act of 2001 and the Enhanced Border Security and Visa Reform Act of 2002. SEVIS is administered by the Student and Exchange Visitor Program (SEVP), a part of Immigration and Customs Enforcement, that ensures that the United States government captures essential data on nonimmigrant students and exchange visitors. International students applying for F and M student visas must ensure that their institution of choice is approved by SEVP. J visas, which are managed by the Department of State, also use the SEVIS system to collect manage critical information about exchange visitors.
Transitioning into the Labor Force
Optional Practical Training is one of the most popular programs under which international students can enter the U.S. labor force post-graduation. Students can apply for OPT after completing their first academic year in the United States. OPT must be related to their course of study and can be applied for at each educational level.2 OPT can be of three types: pre-completion, post-completion, and STEM extension. Pre-completion OPT allows students to work up to 20 hours a week during the school year or full-time when the school is not in session. A foreign student can apply for post-completion OPT upon graduation from their program, which allows for full-time employment. However, a student’s pre-completion OPT hours are deducted from their post-completion OPT, which are limited to 12 months. Students in the science, technology, engineering, or math fields are eligible for a STEM OPT extension of an additional 24 months for a total of 36 months post-graduation.
Curricular Practical Training is another form of applied experience offered to foreign students enrolled in university programs after they complete their first academic year. Unlike OPT, CPT is only offered to students while they are enrolled in university programs and if their employment is a core part of their study. CPT is offered to students once they secure an employment offer and provide a letter from the employer. However, one year of full-time CPT enrollment eliminates a student’s OPT eligibility. Students on M-1 visas are also eligible for one month of practical training for every four months of full-time study, a maximum of six months of practical training upon graduation. Students on a J-1 visa are allowed a maximum of 18 or 36 months of full-time or part-time academic training, depending on the degree, during or upon completion of their related study.
International students on F-1 and M-1 visas who are looking to enter the labor force in the United States through the OPT or other practical training programs need an Employment Authorization Document before starting their employment. However, exchange visitors on a J-1 visa do not require EADs for academic training purposes. They can obtain work authorization from Department of State designated program sponsors. Sponsoring programs can endorse form DS-2019 which indicates the type of work J-1 visa holders are authorized to perform. According to Figure 2, over the last decade, the total number of EADs issued for students on practical training programs has dramatically increased.3
Transitioning to an H-1B Visa
International students with an F-1 status who are employed under the OPT program must either return to their home countries when their OPT and F-1 visas expire or transition to another work-authorized status. Most often, this means securing an official job offer from a U.S. company who will sponsor them for an H-1B visa. H-1B petitions are capped at 65,000 per fiscal year with an additional 20,000 for students that hold advanced degrees, with some exceptions. Employers wanting to hire employees via a cap-subject H-1B specialty occupation petition must register everyone they hope to file for with U.S. Citizenship and Immigration Services. USCIS then conducts a lottery and notifies the employers if they can file for an H-1B petition on behalf of the beneficiary. Employers who are selected in the lottery have 90 days beginning on April 1 to file an H-1B petition on behalf of the employee, including a request for change of status if the employee is currently a foreign student, to begin work on October 1, the beginning of the following fiscal year.
Students whose H-1B change-of-status petition is received by USCIS before their OPT termination date qualify for an extension of their OPT employment authorization, a provision called the “cap-gap” extension. The cap-gap period starts when a student’s F-1 status and employment authorization expire and before their approved H-1B status starts on October 1. If a student travels outside the United States while on ‘cap-gap’ during a pending H-1B petition, USCIS considers the request for change of status abandoned. A student’s EAD is considered expired during the cap-gap extension and they may not be allowed to re-enter the United States on their F-1 visa. In such a case, a foreign student would have to wait until October 1 to apply for an H-1B visa to return to the United States to begin work. According to USCIS, approximately 350,000 F-1 to H-1B change of status petitions were approved between 2008 and 2018, with an average of 32,000 applications per year (Figure 3).
Figure 3. F-1 to H-1B Change of Status (2008-2018)
Those with J-1 visa status may apply for a change of status to an H-1B if certain other requirements are met. Qualifying exchange visitors on a J-1 visa can change their status to an H-1B if they have a qualifying employer file a timely H-1B petition on their behalf. Unless waived, exchange visitor students are subject to a two-year home residency requirement if the government funded their exchange program, if they are part of a graduate medical education training, or if they have a specialized knowledge or skill set. If the visitor is subject to a two-year home residency requirement, they must return to their home countries for two full years before applying for another temporary or immigrant visa, including an H-1B.4
For many international students, entry to the United States on a student visa is just the beginning of a long journey towards permanent residency. OPT and other practical training programs provide an opportunity for foreign students to find out whether they can join our labor force and seek temporary nonimmigrant visas such as the H-1B. However, receiving an H-1B does not guarantee a green card; and transitioning from H-1B to permanent residency can take several additional years. International students, especially those who enter the labor force and transition from student to temporary nonimmigrant visas to eventually a green card, contribute years of their talents and hard work that drives economic growth in the United States. They play a central role in our efforts for innovative research, technology, education, and other fields that powers our economy. Ensuring that they can take their merits from the classroom to the labor force is vital. This is even more important now since many other countries are competing for talented students who are important not only for a diverse classroom but also for a diverse workforce.
1 Recent policy changes announced by ICE in July 2020, required students who are enrolled strictly in online curricula due to COVID-19 to return to their home countries or transfer to a school offering in-person or hybrid curricula. This policy change which was later rescinded may result in lower enrollment rates for the upcoming academic year.
2 Students can apply for 12 months of OPT at bachelor’s level and another 12 months of OPT at master’s level
3 This data does not include academic training figures for exchange visitors on J-1 since they do not require an Employment Authorization Document for employment.
4 Those with M-1 visas are not allowed to change status while in the United States. To change to an F status, the M-1 visa holder must leave the United States and apply to a SEVP-certified school to receive an I-20 form. They must apply for a new visa overseas at a U.S. Embassy or a Consulate.
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