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Hiring a Foreign National

By Robert D. Emmerson

A United States company that wants to hire a foreign national who recently graduated from college might realize that it isn’t an easy, straightforward process. Often multiple immigration tools will have to be used in order to appropriately employ the foreign national. Two of those options, H-1B visas and Optional Practical Training (OPT) as part of the F-1 student visa, are often used together to allow recent graduates to work while the application for the H-1B visa is being prepared and processed.

OPT is a short-term program that allows a foreign national student who is attending school in the United States on a F-1 visa to work in the United States as long as the work relates to the student’s course of study.  OPT allows a student to work for total of 12 months of full-time practical training at each education level. The student can also use these 12 months while they are a full time student, but can only work part-time. The time the student spends working under OPT while in school will be deducted from the 12 months allowed. Because the student is only allowed to work part-time during the school year, the time is deducted 1 month for every 2 months worked while in school. OPT is not a visa, it is simply an extension of the student’s F-1 visa.

F-1 students have a 60-day grace period after they graduate or after their OPT expires to leave the United States, apply for change of status, or transfer to another school.

There is also an option for curricular practical training (CPT) while they are in school. Please contact DeFur Voran for more information on this program.

H visas are non-immigrant visas that allow foreign nationals to live and work in the United States. There are different categories of H visas that apply to different types of employment. H-1B visas are for workers in specialty occupations in fields requiring highly specialized knowledge.  H-1B visas are issued for 3 years at a time and can be renewed once for a total of 6 years. H-1B visas are in high demand and only 65,000 are issued each fiscal year. Some types of employers are exempt from the 65,000 cap. While those exemptions will not be discussed here, it is important to determine if your company will be subject to the H-1B cap. The cap resets each fiscal year. The fiscal year begins in October and petitions can be filed up to six months prior.  As such, April 1 is the best time to file an H-1B petition.  All visas for FY 2017 (October 2016-October 2017) have been issued, so the next opportunity for an H-1B visa is for FY 2018 with applications accepted beginning in April 2017. This would allow the foreign national to begin working in October 2017.

Consider the example of a recent graduate. In order to work under their OPT, the student should apply for post-graduation OPT prior to graduation. The university the student is attending will need to assist in this process. Because the OPT is only available for 12 months, this will usually mean the OPT will expire around May, June, July of the following year. However, because the start date of the H-1B cannot be prior to the next fiscal year, there will be a gap between when the OPT expires and when the H-1B begins in October.

To cover this time, the H-1B Cap Gap Extension is used (“Cap Gap”). The Cap Gap allows students who have pending or approved H-1B petitions filed to remain working in the United States.  To be eligible for the “Cap Gap” the H-1B must be filed by the employer on or after April 1 and request a change of status to begin October 1.  The student must be within the OPT authorization period when the H-1B petition is filed.

If the student’s OPT has expired but they are still within the 60-day grace period when the H-1B application is filed, the F-1 status will be extended so the student can remain in the United States, but they cannot work until the H-1B is issued.

For a student currently working using OPT, it will be important to file the H-1B application on or after April 1 and prior to the OPT expiring. This will allow uninterrupted work during the time the student is transitioning from the F-1 visa to the H-1B visa.

For more information on matters concerning immigration, please call DeFur Voran’s Immigration Group at 317-576-8400 or contact us here.

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