 
 
|
|
Crossing the Bridge to Employment : F-1 Students
and the Transition to H1B Employment
Posted
Feb 23,
2008
©MurthyDotCom
This article was written by the attorneys of the Murthy Law Firm for
Murthy's Corporate Bulletin. If you are an employer or HR manager,
interested in the services offered by our firm, contact our
Corporate Services Manager.
©MurthyDotCom
The first day of Fiscal Year
2010 (FY2010) is October 1, 2009. Accordingly, the USCIS will accept filings
for new H1Bs allocated to FY2010 six months in advance of this date,
beginning April 1, 2009. As this date rapidly approaches, many employers
have voiced concerns about their newly hired employees, whose student
statuses will expire before the start of FY2010. F-1 students whose statuses
expire prior to permitted H1B start date of October 1, 2010 will, therefore,
require a legal means to remain in the United States. The period between the
end of F-1 student status and the October 1st start date as an H1B worker is
commonly referred to as the “cap gap,” which can create difficulty for
employers and their new hires. In our January teleconference addressing this
topic, Attorney Sheela Murthy led a discussion explaining the solutions that
may be available.
Question 1: What is the H1B cap?
The law limits the number of new H1B petitions that can be granted on an
annual basis to 65,000. However, only 58,500 H1Bs generally are available,
due to a set-aside in treaty categories for nationals of Chile and
Singapore. There are 20,000 additional H1Bs available for individuals who
have completed a master’s degree or higher from a U.S. institution of higher
education.
Further information related to the H1B cap, as well as other important basic
concepts regarding the H1B visa program, may be found on MurthyDotCom
in the October 2008
edition of Murthy’s Corporate Bulletin.
Question 2: What happens if my company’s new hire is not eligible for an
extension of status and/or work authorization until October 1, 2009?
Most situations in which there is a gap between the expiration of an F-1
student's status and the permitted start date of H1B status, the student
must return home, reenroll in school, or change to a dependant status
through his/her spouse. If the student is eligible for cap-gap relief,
explained below, there may be alternatives to the aforementioned
obligations.
Question 3: My company has located a graduating F-1 student whom we wish
to hire. The student should have permission to work under Optional Practical
Training (OPT) soon. Can this individual reside legally in the United States
until the October 1st start date requested in the H1B petition? Can s/he
work during this time? What about our other OPT employees, who graduated
earlier and whose OPT periods will expire before October 1st?
Students are permitted to remain in the U.S. and work in positions
related to their educational programs until the expiration of their OPT
periods. Additionally, if needed, the law automatically extends permission
to live and work in the U.S. to F-1 students whose employers have filed
timely, cap-subject H1B petitions that requested changes of status on their
behalf. In order to utilize these provisions, such H1B petitions must have
been filed before the expiration of their OPT periods.
If an H1B case has been filed prior to the expiration of the OPT, then the
student's status and work authorization is automatically extended until
October 1st, or until the H1B case is rejected, denied, or revoked by U.S.
Citizenship & Immigration Services (USCIS), whichever occurs first.
Question 4: What is the difference between a request for change of status
(COS) versus consular processing (CP)?
Generally, if an individual is in valid F-1 status at the time the
company files the H1B petition, and the foreign national can maintain
his/her status until the requested start date, then the company can request
a change of status from F-1 to H1B. If the change of status is granted, then
the H1B approval notice will contain an attached I-94 card, and the foreign
national's immigration status effectively will have been changed in this
manner - all from within the United States. If the new employee is not
issued a new I-94 card upon approval of the H1B petition, then the
individual is precluded from engaging in work until s/he has left the U.S.,
obtained an H1B visa at a U.S. consulate abroad, and reentered the U.S.
receiving an I-94 card at the Port of Entry. Cap-gap relief is only
available when a change of status was requested and was otherwise
appropriate.
Question 5: When requesting a change of status from F-1 to H1B for my new
hire, what is the timeframe allowed by the cap-gap extension?
At this time, no new guidance has been issued by the Student and
Exchange Visitor Program (SEVP), operated by U.S. Immigration & Customs
Enforcement (ICE), which maintains the system used to track all foreign
students in the United States. Based upon last year’s guidance, if the H1B
case has been properly filed on behalf of the F-1 student before the
expiration of the OPT, then the student’s OPT would be extended at least
until the end of the period for receipting cap-subject H1B cases. Last year,
this date was June 2, 2008. If the H1B case is not selected, then the F-1
student’s status would terminate on the last date of receipting, in the
event that the OPT has also expired by that time.
If the H1B case is selected for receipting, then that foreign national’s
status and work authorization would be extended until September 30th. If the
H1B case is withdrawn or denied, then the extended OPT work authorization
would end ten days after either action. The 60-day grace period, at the end
of which the law expects the student to leave the U.S., would then begin.
Question 6: If my company files an H1B case to sponsor a foreign student,
how will we know that the cap-gap extension has become effective?
A company requesting a change of status from F-1 to H1B will not know
the full extent of the cap-gap extension until either a receipt notice or
notification that the case was not selected is received. The full cap-gap
extension is only available for students whose H1B petitions have been
selected in the lottery, and are either approved or remain pending through
to September 30th. However, nothing in any of the cap-gap rules shortens the
permitted stay and work authorization in OPT. The cap gap only creates a
dilemma for students whose OPT periods expire before October 1st.
Question 7: Will the foreign national be notified by USCIS that s/he has
been extended cap-gap relief?
Unfortunately, individuals who are sponsored for cap-subject H1Bs will
not be notified by USCIS that they have become beneficiaries of cap-gap
extensions. If eligible, this benefit occurs automatically under the law.
Once the USCIS issues a receipt notice for an H1B case, the tracking system
operated by SEVP may be updated. So, a school’s designated student officer
(DSO) may know about the receipting of the H1B case. Additionally, the
employer and attorney should receive a receipt notice, and the checks
remitted for filing fees will be cashed.
Question 8: What happens if the H1B case is not selected in the USCIS
lottery? What options do employers and their new hires have to continue or
begin an employment relationship?
Employers hiring students with STEM (science, technology, engineering,
mathematics) degrees may wish to consider the extension of OPT work
permission, known as the STEM extension. A more thorough discussion of this
option is available in our September 26, 2008 article
OPT Employment Options
for Students. The STEM extension provides an additional 17 months of
work authorization, beyond the 12-month period for which all students
generally are eligible. ICE maintains a list of approved degrees under which
students may qualify.
Question 9: What is required in order to obtain the 17-month STEM
extension?
Students may be eligible for the STEM extension if they have not
previously received this extension after earning the STEM degree, the
current OPT held by the student is based on a STEM-designated degree, the
employer is registered in the E-Verify program, and the employer agrees to
report the termination of the OPT employment to the student's DSO within 48
hours. Receipt of the STEM extension also requires the F-1 student to check
in with the DSO every six months from the start of the extension to verify
personal data, as well as to report within ten days other changes in
employment and address.
Conclusion
The rules surrounding cap-gap relief may seem complex, but
they are designed to avoid gaps in employment eligibility for new graduates.
The actual application of the rules in any particular case can be fairly
straightforward, and is an area in which attorneys at the Murthy Law Firm
can provide valuable guidance. It is important for employers to know the
duration and terms of their foreign national employees' statuses and
employment authorizations. Our firm has experience in advising a wide array
of clients in addressing their need for employing foreign nationals,
including the issues related to transition from F-1 OPT to H1B status. We
would be pleased to work with employers and employees to explore options and
evaluate various courses of action. An undiscovered detail or new
opportunity may become the key to unlocking one of the options that exists.
The Murthy Law Firm has been successful in dedicating all of the resources
necessary to ensure that our clients find the solutions that the immigration
law can provide to ensure that their business objectives are achieved with
the best and brightest employees available.
©MurthyDotCom
"We know immigration matters!"
SM
Copyright © MURTHY LAW
FIRM. All Rights Reserved
|
|
Employer
Teleconferences
Learn about our teleconference series, expressly addressing the concerns
of employers.
|
