4/18/2008 - USCIS Announces that Change of Status Will Be Permitted for F-1 Students Applying for H-1B Visas
U.S. Citizenship and Immigration Services has announced that foreign nationals present legally in F-1 student status, but who have had petitions filed for them by employers in the first week of April seeking H-1B status for of fiscal 2009, can change status to H-1B even though their F-1 status will normally expire before the start of fiscal 2009 on October 1. Of course, this will impact only the approximately one-third of H-1B petitions submitted fortunate enough to have been selected for processing in the random lottery.
This announcement is a follow-on to an Interim Final Rule announced on April 8 which automatically extends the F-1 status of students seeking H-1Bs in order to cover the gap between the typical expiration in the summer and the beginning of the new fiscal year on October 1. This announcement will essentially make this automatic extension, as a practical matter, available for the current year.
This pronouncement and the Interim Final Rule it seeks to extend were both set forth after all of the H-1B petitions for the 2009 fiscal year had already been filed - therefore, many individuals who might have benefited did not include the required request for a change of status in their petitions, thinking themselves not entitled under the law as it then existed. However, the announcement from USCIS contains a procedure to e-mail in requests to include change of status requests with pending petitions once a Receipt Number is obtained (requests must be submitted by e-mail within 30 days of issuance of the Receipt Notice).
While in the past several years F-1 students seeking an initial H-1B to begin on the October 1 start of the new fiscal year had not been permitted to change status and had been forced to go abroad, obtain an H-1B visa stamp and return to the U.S., legacy INS had in the past permitted F-1 students to remain in the U.S. (though not work) and change status in the late 1990s and early 2000s. This pronouncement and the Interim Final Rule restore this older and more rational approach.
This provides an enormous convenience to F-1 students seeking to obtain initial H-1Bs and their sponsoring employers (at least to those selected in the lottery). These students will no longer need to leave the U.S. to wait abroad, and then obtain a visa stamp at the consulate before returning to the U.S. When combined with the extensions of Optional Practical Training employment authorization for certain fields in future years, it will avoid any interruption in employtment.
Lottery-selected F-1 students applying for initial H-1Bs and their employers.