LAW360 | Expert Analysis: F-1 Visa Holders Changing To H-1B Face New Risks

By Xavier Francis, Erickson Immigration Group Attorney

On March 20, 2018, U.S. Citizenship and Immigration Services announced it will temporarily suspend premium processing for all H-1B cap petitions for the fiscal year of 2019. This marks the second consecutive year USCIS suspended premium processing for H-1B cap petitions. Given the agency’s limited resources and the high volume of H-1B petitions to adjudicate within a six-month period, it is not difficult to acknowledge the huge burden levied on the agency. This burden may also incentivize the agency to issue requests for evidence if it is unable to timely adjudicate those petitions. While the suspension of premium processing and RFEs affect many stakeholders, F-1 (student) visa holders may be exposed to more collateral harm in the long-run unless policy changes are implemented.

F-1 visa holders changing to H-1B status are at risk of losing work authorization in two circumstances: (1) USCIS issues an RFE on the H-1B cap petition that is adjudicated after Oct. 1, leaving the F-1 holder without work authorization past Sept. 30; and (2) the F-1 visa holder’s preliminary cap gap expires before receiving either a H-1B cap rejection notice or receipt notice from USCIS.

RFE Issued to F-1 Visa Holder Changing Status to H-1B (Non-STEM Students)

A major challenge facing F-1 visa holders seeking change of status to H-1B is the risk of losing work authorization due to RFEs from USCIS. The ordeal becomes magnified by RFEs that are adjudicated after Oct. 1, which results in F-1 visa holders left without work authorization while awaiting a decision on their H-1B petition. Neither the regulations nor USCIS address this issue of what happens to an individual’s cap gap work authorization when H-1B processing times exceed six months, much less provide recourse for those affected.

Under current regulations, F-1 visa holders with pending or approved H-1B petitions may remain in F-1 status during the “cap gap” period. The cap gap refers to the period of time between the expiration of F-1 status and the beginning of H-1B status. An F-1 visa holder who requests a change of status to H-1B on Oct. 1 may qualify for two types of cap gap extensions: (1) a preliminary cap gap through June 1 (provided the student’s optional practical training, or OPT, expires before June 1); and (2) a subsequent cap gap through Oct. 1 (provided the student is selected in the lottery).

Before answering this question, let’s take a step back and outline what normally happens. Generally, the vast majority of cases should expect two different outcomes:

• Scenario Number 1: F-1 visa holder receives a receipt or approval notice (Form I-797) from USCIS before the expiration of her preliminary cap gap on June 1 or OPT expiration. With the receipt or approval notice, the student can go to the designated school official, or DSO, and request a subsequent cap gap, which extends her status through Oct. 1.
• Scenario No. 2: F-1 visa holder receives a rejection notice from USCIS before the expiration of her preliminary cap gap on June 1 or OPT expiration. The student must exit the U.S. within 60 days after receipt of the rejection notice or end of OPT (whichever is later).

Now consider Scenario No. 3:

• Scenario No. 3: F-1 visa holder receives an RFE, which is adjudicated after Oct. 1. What result?

The F-1 visa holder in the third scenario must immediately stop working after the expiration of their cap gap on Oct. 1. Additionally, neither the regulations nor USCIS provide guidance for F-1 visa holders in this situation. The F-1 visa holder in the situation must simply wait until her RFE has been adjudicated, which may take months after Oct. 1. The F-1 visa holder may also leave the U.S., but her departure will trigger consular processing and she must continue waiting abroad until the RFE is adjudicated. Thus, the effect of RFEs on F-1 visa holders seeking H-1B change of status increases the risk of losing work authorization. Further, even if F-1 visa holders do not receive RFEs from USCIS, non-STEM (science, technology, engineering and math) F-1 visa holders may be at risk of losing work authorization if they receive neither a rejection nor receipt notice from USCIS after the expiration of their preliminary cap gap or OPT.

Preliminary Cap Gap or OPT Expires (Non-STEM Students)

F-1 visa holders seeking to change status to H-1B face a second challenge: what result if an F-1 visa holder’s preliminary cap gap or OPT expires before she receives neither a rejection notice nor an approval notice from USCIS?

Now consider Scenario No. 4:

• Scenario No. 4: F-1 visa holder, a non-STEM student, receives neither a receipt notice nor rejection notice from USCIS before the expiration of her June 1 preliminary cap gap or OPT expiration (whichever is later). What is the result?

Although this is rare, the law does not account for this scenario and fails to provide a precise answer and recourse for affected F-1 visa holders. Further, universities may refuse to extend OPT status in these cases, which forces affected F-1 visa holders to stop working. Thus, F-1 visa holders who end up in this ordeal have three options:

1. Exit the country before the end of the 60-day grace period and continue waiting for notice from USCIS. This would trigger consular processing;
2. Seek to change or adjust status, if possible; or
3. Enroll in a new academic program and seek to qualify for early CPT, which would enable the student to continue working.

Although enrolling in a new academic program and seeking qualification for early CPT is both costly and time consuming, perhaps it serves as the best safety net for those wishing to remain in lawful status while their H-1B cap petition remains pending. Further, if the F-1 visa holder enrolls in a new program and later receives an approval notice, she may seek to cancel her enrollment. If the F-1 visa holder receives a rejection notice, she may continue academic enrollment (in a program related to her specialty) and submit a new petition for the following H-1B cap season.

Policy Considerations

If USCIS continues its trend of suspending premium processing and issuing RFEs to H-1B cap petitions, the agency should consider the collateral effects on F-1 visa holders’ ability to work in the U.S., and at a high level, the impact on U.S. universities’ ability to attract top foreign students. Additionally, the agency should consider sustainable solutions for those affected. For instance, the agency could allow universities to extend the preliminary cap gap through Oct. 1. This would curtail the likelihood of F-1 visa holders losing work authorization if USCIS fails to issue a rejection notice or receipt notice in due time. This option, however, fails to account for F-1 visa holders facing RFEs adjudicated after Sept. 30. Solving that issue will require more sweeping policy changes. A more far-reaching policy change to preserve the work authorization of F-1 visa holders is extending the cap gap until the H-1B petition is adjudicated. It may be useful to adopt practices that have worked successfully in other countries.

When observing Australia’s immigration processes, it is apparent that change of status petitions are handled more efficiently and are more streamlined when compared to the U.S. The Australian Bridging visa allows foreign nationals with expired visas to retain the substantive rights granted by their initial visas while their change of status applications is pending. In other words, if the previously held visa allowed the foreign national to work, the foreign national’s Bridging visa will allow her to retain that substantive right, i.e., the right continue working. On the other hand, if the foreign national seeks to change status from a business or tourist visa to a work permit, the Bridging visa would limit the foreign national to the substantive rights permitted by the business or tourist visa (i.e., she would not be allowed to work). Thus, the Bridging visa preserves the rights granted by the initial visa until the pending visa is approved.

The Bridging visa also allows beneficiaries to add dependents and is valid until the beneficiaries’ pending application is adjudicated. It also incentivizes the government to timely adjudicate applications, as the time foreign nationals spend on the Bridging visa is not subtracted from the time allotted for their future work authorization. Thus, the Bridging visa serves as a safety net for foreign nationals who would otherwise be at risk of losing their work authorization. It also preserves a level of fairness within the immigration system by limiting applicants to the same substantive rights granted by their initial visa, which ultimately maintains a degree of uniformity and control within the system.

While it may not be necessary for the U.S. to adopt a whole new visa category such as a bridging visa, USCIS can apply the same concept on a much smaller scale to F-1 visa holders seeking cap gap extensions. The cap gap equivalent to the Australian Bridging visa achieves several objectives. Specifically, it:

1. Accounts for major flaws in the regulations, which was probably never anticipated by the agency.
2. Accounts for the agency’s inability to timely adjudicate petitions due to increased demand.
3. Provides a safety net for affected F-1 visa holders by allowing them to retain work authorization.
4. Incentivizes the agency to timely adjudicate petitions.
5. Has the potential to extend beyond F-1 visa holders and serve members of other visa categories, making our immigration system more efficient overall.

If used properly, the bridging visa concept can make our immigration system more efficient and streamlined. Indeed, its use can extend beyond F-1 visa holders to L-1 visa holders who seek to change status to H-1B via the cap process. For example, an L-1 visa holder — seeking H-1B change of status — whose visa expires on May 30 (or any other date before Oct. 1) must stop working even though she may lawfully remain in the U.S. Further, she may not work until Oct. 1, provided she is selected in the lottery. However, a bridging visa would allow her to maintain her work authorization until the H-1B visa is approved. This demonstrates the utility of a bridging visa as it accounts for major pain points for both foreign nationals and U.S. employers in our current immigration laws.

Conclusion

In sum, the suspension of premium processing and the possibility of RFEs can potentially trigger collateral effects on F-1 visa holders and present new and complex challenges to H-1B employers in the future. The alternatives outlined above seek to curtail the inefficiencies faced by USCIS and provide relief for F-1 visa holders who may lose work authorization. This challenge may become more frequent given increased strain on USCIS’s limited resources coupled with the tens of thousands of H-1B cap petitions it must adjudicate each year. If this trend spills over into the future, we can expect this to become a normalized ordeal for F-1 visa holders. Thus, there is a need to revise current cap-gap rules to account for flaws within the system. As current law and guidance from USCIS do not address these issues, F-1 visa holders should be prepared for the unexpected and carefully strategize solutions for their immigration needs.

Xavier Francis is an attorney at Erickson Immigration Group in Arlington, Virginia.

The author would like to thank associate Jeffrey DeCruz, associate Anna Ksor Buonya and managing attorney Stephanie Tan, all based in Erickson Immigration Group’s Arlington office, for their assistance preparing this article.

Analysis was originally published in Law360. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.