OPT Cap-Gap Extensions

The H1B cap-filing season for fiscal year (FY) 2014 has prompted many questions from MurthyDotCom readers. They have raised their concerns about coordinating H1B filings with the expiration of optional practical training (OPT). This NewsBrief provides readers with important information on the operation of the cap-gap extension of OPT.

USCIS Guidance

The U.S. Citizenship and Immigration Services (USCIS) has provided helpful questions and answers regarding cap gap in Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students Under the H1B Cap-Gap Regulations. The Q&A (29.Mar.2012), provides USCIS guidance on transitioning to H1B status. While written for FY13, the information remains helpful if a beneficiary's F-1 student status is scheduled to expire prior to October 1, 2013, the start of FY14.

Background: Cap-Gap Relief Made Permanent

The U.S. Department of Homeland Security (DHS) issued a regulation on April 8, 2008 that provided for automatic extension of status for certain students in order to bridge the "gap" between the end of their student status, typically Optional Practical Training (OPT), and the start of the particular government fiscal year on October 1st. In some cases, both status and employment authorization receive an extension during this gap period. Many articles on this topic are available on MurthyDotCom, including F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis (09.Apr.2008), in which the eligibility criteria for the extension under the cap-gap rule is explained. The cap-gap rule is summarized below, and MurthyDotCom readers are reminded of the specific considerations of which they need to be aware for FY14.

Eligibility Under Cap-Gap Rule

An F-1 student whose status expires after the filing of an H1B petition requesting a change of status effective October 1, 2013, but before the requested start date, receives an automatic extension of his/her F-1 status. This extension is valid until September 30, 2013, if the H1B petition is accepted and approved. The official start of the new 2013 fiscal year (FY13) is October 1, 2013. Therefore, in order to benefit from the application of the cap gap, the petition must request a start date of October 1, 2013. Any other day is improper and will not result in cap-gap relief.

If the student beneficiary is authorized for employment (OPT), as of the date of the filing of the H1B case, his/her employment authorization will also be automatically extended through the entire cap-gap period. However, if the petition is denied, withdrawn, revoked, or rejected, the status and work authorization ends, but the student should be eligible for the standard 60-day grace period from the date of the triggering event or the program end date, whichever is later. If, however, the USCIS denies the change-of-status request based on a violation of student status, or denies or revokes the petition based on a discovery of fraud or misrepresentation, there is no grace period.

Actions Required of DSO and F-1 Students

Once the H1B petition is filed, the student beneficiary should contact her/his designated school official (DSO) and provide proof of filing, such as a copy of the petition and proof of mailing. The DSO should then issue a preliminary cap-gap I-20 that extends the student's status temporarily. Once the USCIS issues a receipt notice (I-797), the student should return to the DSO to receive a new I-20 for the full cap-gap period. The preliminary and the final cap gap I-20 may be used as evidence of status and employment authorization, if applicable.

Students May File for STEM Extension During Cap Gap

During the cap-gap period, the student beneficiary may also apply for the 17-month STEM extension, if otherwise eligible. However, if the petition was withdrawn, revoked, or denied, and the student has entered the 60-day grace period, s/he is no longer eligible to make an application for a STEM extension.

When a SEVIS Data Fix is Required

Data fix is a term used to describe a request to correct a student's SEVIS record made by the DSO. In some situations, it may be a useful tool to correct an action that could otherwise result in termination of student status. In the Q & A, the USCIS provides several examples of when a student may want to consider contacting her/his DSO to request a data fix. More specifically, in previous years the USCIS prematurely terminated SEVIS records for some students who were not covered under the cap-gap rule, as their OPT extended after October 1st of the particular year, and the H1B start date requested was also later than October 1st. Some of these students found however that their SEVIS records and, thus, their OPT were terminated incorrectly on September 30th. The USCIS instructs that students in these situations should contact their DSOs to request data fixes to reinstate their SEVIS records.

Other common scenarios include the situation in which an H1B petition is approved for change of status effective October 1st, but the student no longer desires that the status be changed to H1B on that date. Such a student wants to continue to use the still-unexpired OPT. In such a case, the petitioning employer should request to withdraw the approved petition before October 1st. Once the USCIS acknowledges withdrawal, the student should take the acknowledgement letter to the DSO and request that the SEVIS record be changed back to active status. A data fix is no longer possible if this matter is not addressed before the October 1st start date, as the student's status will automatically change then to H1B.

Conclusion

While the cap-gap rule may be deceptively simple, H1B petitioners and beneficiaries are encouraged to examine their specific circumstances to make sure that they achieve their desired objective of maintaining status and possibly employment authorization during the period prior to October 1st. Whenever in doubt, it is recommended that any petitioning employer and individual beneficiary consult with a knowledgeable immigration attorney to develop the best possible course of action that may be applicable to the situation.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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