Application Process for Changing Status From F-1 to H-1B

If you are a foreign student in the U.S. who is interested in getting a temporary visa to work in the U.S. after graduation, an H-1B, for temporary specialty workers, is a likely possibility. This article will focus on what steps must be taken to switch from F-1 to H-1B status.

The process will be largely in the hands of your future (or possibly present) employer, who will need to submit a petition on your behalf asking to change your status to H-1B. Despite this, it is important for F-1 students to have a general understanding of how the process works so that they can adequately prepare the supporting documents and effectively communicate with their employers about their rights and responsibilities. 

Initial Steps – Determining H-1B Eligibility And Submitting The Labor Condition Application

You must first get a job offer, and your employer must determine your eligibility for H-1B status. To be eligible, the position must be a professional one, and the employer must plan to pay you the prevailing wage.

A professional position is one that requires, at minimum, a bachelor’s degree. The prevailing wage is an amount that is determined by the U.S. Department of Labor (DOL).

If the employer cannot satisfy either of these requirements, it is not permitted to sponsor the F-1 student for H-1B status. If the employer can satisfy these requirements, it has to submit a Labor Condition Application (LCA) to the DOL and comply with LCA posting requirements as set forth by law. The employer cannot move forward with the H-1B petition until the LCA is certified by the DOL.

For more information on basics such as eligibility requirements for the H-1B, see "H-1B Visas for Temporary Specialty Workers." 

Preparing Supporting Documentation

The employer has to submit several supporting documents with the H-1B petition. These include a number of documents that you, the F-1 student, will have to provide, specifically: 

• your resume
• a copy of your school degree and transcript
• copies of all your previously issued I-20 forms
• copies of the last three pay statements if you are currently employed through Optional Practical Training (OPT), and
• copies of the front and back of your I-94 card, passport biographic page, and F-1 visa stamp.

 The employer will have to provide the following supporting documents: 

• copy of the signed and certified LCA
• a support letter that provides information about the job requirements, duties, and salary. This letter must also state the period of time the employer wishes to sponsor you in H-1B status, as well as a statement that it will provide return transportation if it dismisses you before the approved end date, and 
• copy of the original signed offer letter. 

Preparing the Forms and Filing Fees for USCIS 

The employer will need to prepare and file the following forms with USCIS for the H-1B petition:

• I-129 Petition for Nonimmigrant Worker, requesting a change of status for the F-1 student
• I-129 H Supplement
• I-129 Data Collection
• I-907 Request for Premium Processing (required only if the employer wishes to expedite the processing and is willing to pay the premium processing fee).

The employer is required to pay an H-1B filing fee ($325 in early 2012, but check the USCIS website for any updates), the ACWIA fee (determined by the number of employees), and the fraud prevention and detection fee ($500 in early 2012).

The F-1 student should not be paying any of these fees. If the employer or F-1 student wishes to expedite processing of the H-1B petition, either one can pay the premium processing fee for this, which was $1,225 as of early 2012.

All fees must be paid separately with a check or money order made payable to the Department of Homeland Security.  

Filing the Petition With USCIS

The employer must file the nonimmigrant worker petition and supporting documents in duplicate with the appropriate USCIS Service Center. The I-129 instructions, available at http://www.uscis.gov/files/form/i-129instr.pdf, will indicate which Service Center to file with.

If you have dependents (spouse and children) requiring a change of status to H-4, you will have to make sure to prepare and file an I-539 Application to Extend/Change Status along with the H-1B petition. See "Applying for an Extension or Change of Status on Form I-539" for help with this.