OPT, F-1 student visa holders moving to H-1B will not trigger $100K fee

International students in the United States stand to benefit from the new $100,000 H-1B petition fee. US authorities have clarified that foreign students currently in the US on an F-1 visa can be employed by a US employer without the requirement of a $100,000 petition fee. The foreign students may be studying or enrolled in an OPT program.

From an F-1 visa, students can transition to an H-1B visa. In guidance from USCIS on October 20, it was clarified that the recent $100,000 petition fee will not affect “change of status” cases, such as F-1 students transitioning to H-1B skilled worker visas.

Those applying for an extension or change of status in the country, as well as those petitioning for a change of employer, will be exempt.

Each year, many F-1 students change their non-immigrant status to H-1B temporary employment after completing their studies or post-completion optional practical training (OPT). Their employer can petition USCIS for H-1B status by submitting Form I-129, “Petition for a Nonimmigrant Worker.”

If you are an M-1 student, your prospective employer may petition for H-1B status on your behalf if your employment does not relate to your M-1 program of study.

Foreign students need to remain in the US after studies if they are looking to settle in the country as a permanent lawful resident or a green card holder.

US laws allow nonimmigrants such as foreign students to keep changing status to stay and work in the country with a clear pathway to apply for a green card.

“For employers hiring international grads already in the U.S. on F-1/OPT, the advised path remains an in-country change of status to avoid the fee. However, graduates who must depart and re-enter for a consular stamping could face the cost unless a narrow, discretionary waiver applies. The agency has signaled that exemptions will be “extraordinarily rare,” keeping some risk in the system for cases that cannot remain fully in-country,” says Sanjay Laul, Founder of MSM Unify.

As an F-1 student, you may be eligible for an extension of your F-1 status through April 1 of the following year if you meet the following requirements:

Your potential employer files an H-1B petition on time with USCIS with an employment start date between Oct. 1 and April 1 of the following year.

You are maintaining your F-1 status on the date your potential employer files your H-1B petition.

USCIS receives the H-1B petition on time and issues a receipt for it.

If your H-1B petition is denied, withdrawn, revoked, or not selected, an F-1 student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to depart the United States.