Can small Start-up Companies Sponsor Foreign Individuals when Their OPT has Expired?

Optional Practical Training (OPT) is temporary work authorization, granted to F-1 “International Student” visa holders. OPT is offered to students that qualify under their degree program to engage in work directly related to their major area of study.

What is OPT?

Optional Practical Training (OPT) is temporary work authorization, granted to F-1 “International Student” visa holders. OPT is offered to students that qualify under their degree program to engage in work directly related to their major area of study.

What if my OPT Expires?

Once an F-1 student’s OPT has expired, the law gives a 60-day grace period to prepare for departure back their home country or if eligible, the student may apply for another status. However, it is important to note that action must be made within the grace period, because after the 60-day period, the student turns out to be out of status and no filings are permitted to be made after that time. For example, if a student has a pending H-1B petition filed by their employer, their OPT period extends while their new status is adjusting and processing. Therefore, whether or not their grace period has ended, so long as the filing was made before or during the 60 days, the student prolongs its status.  The period of time between completion of OPT and the start of H-1B status is referred to as a cap-gap.

A cap-gap extension extends an eligible F-1 student status and post-completion OPT period to bridge the gap between the end of F-1 status and start of H-1B status. This allows the student to remain and work in the U.S during the “gap”. The cap-gap extension is available to students who, as of April 1 of the current calendar year are either on approved OPT or in their 60-day grace period, and have a pending or approved H-1B change of status petition with an October 1 start date that was filed PRIOR to the expiration of their OPT or 60-day grace period.

How to Change Status from OPT to an H-1B Visa?

With the H-1B visa, U.S companies are able to employ graduate level workers in specialty occupations. Any professional level job that requires an individual to have a bachelor’s degree or higher can be petitioned for an H-1B visa by an employer. The scope of the individuals job must meet one of the following criteria:

(i) Must have received a bachelor’s degree or higher is the minimum requirement for the position;

(ii) The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in the field related to the position;

(iii) The employer normally requires a degree or its equivalent for the position; or

(iv) The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher.

Additionally, the job must also be in a specialty occupation related to the individual’s field of study. The pay of the prospective position must be the actual or prevailing wage for the occupation and lastly, the H-1B visa number must be available at the time of filing the petition. In other words, there must be a visa available at the time.

What Kind of Companies Can Sponsor Foreign Nationals?

Any company, regardless of size and the amount of time it has existed for, can sponsor an H-1B visa. A company may sponsor an H-1B visa for a foreign national so long as there is an employer-employee relationship with the petitioning employer.

 


If you are interested in knowing more about work visas or would like assistance with your employment needs, please do not hesitate to contact one of our knowledgeable attorneys at EPGD Business Law. EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

Categories: Employment Law | Immigration Law

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