F-1 Foreign Students & the
H-1B Visa

Other H-1B Filing Fees

The base fee of $320 can be paid by the employer or employee.

The premium processing fee of
$1,000 can also be paid by either party.

Who Can Pay Attorneys Fees

• Unclear whether the employee is allowed to pay the attorney’s fee
• One interpretation: employee can pay so long as her wage exceeds the prevailing wage by amount of attorneys fees
• A third party payor allowed
• Challenges for public schools

Premium Processing

• $1,000 filing fee
• USCIS must adjudicate the petition within 2 weeks of receipt or request additional evidence within this time frame
• Not necessary to obtain a visa number, since the filing of the petition secures the petition’s place in line for a visa number

Consular Processing
for an H-1B Visa

If an F-1 student cannot change status in the U.S., then the student must obtain an H-1B visa at a U.S. consulate abroad before working in H-1B status

When Consular Processing is Required

USCIS makes a formal finding of a status violation against the F-1 student
A status violation can include:

• A gap in status
• Working without authorization
• Not maintaining a full courseload

Change of Status Versus Consular Processing

In both cases, H-1B status is granted to the alien.

The only difference between change of status and consular processing is the process for obtaining H-1B status.

Obtaining A New H-1B Visa Abroad

If the F-1 alien originally changed status to H-1B in the U.S., then the alien must obtain a new H-1B visa before re-entering the U.S. after a trip abroad.

Exception: Travel to Mexico or Canada for fewer than 30 days

Post-filing Issues

Portability

H-1B change of employer petitions
The employee can commence employment with the new H-1B petitioning employer upon the filing of an H-1B petition.

Admission and Extension

H-1B status granted for up to three years at a time and for a maximum of six years, with certain exceptions.

The extension petition must be filed where the alien is still in H-1B status, unless USCIS forgives a gap in status.

Exceptions to the Six-Year Period

The alien may seek H-1B status indefinitely beyond the six year period under the following situations…

1. A labor certification (1st stage of green card process for most) or Form I-140 immigrant visa petition (2nd stage) was filed at least one year before the end of the six-year period in H-1B status
2. The Form 140 is approved and
   a visa number for legal permanent residency is unavailable
   • The alien can start the process
     for legal permanent residency
     either before, during or after filing
     the H-1B petition.