USCIS Additional FAQs on F-1 OPT Cap Gap for Qualified Students
Posted Jun 06, 2008
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The U.S. Citizenship and Immigration Services (USCIS) published a new set of Questions and Answers (Q/As) (PDF 81.4KB) on May 23, 2008, further explaining the new rule regarding extension of Optional Practical Training (OPT) for qualified students. MurthyDotCom and MurthyBulletin readers will recall from our April 9, 2008 article, F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis that the new rule provides "cap gap" relief and eligibility for a 17-month OPT extension period for certain qualified F-1 students who pursue education in Science, Technology, Engineering, or Mathematics (STEM). The Q/As address various situations and requirements of great importance to employers and their employees working on OPT. This article addresses the first part of the Q/As, which discuss automatic extension of the F-1 status for students authorized for OPT.
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Employers May Request Change of Status Even if Petition already Requested Consular Notification
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Many beneficiaries of H1B petitions are students whose 60-day F-1 grace periods following OPT authorization will expire before their requested H1B start date of October 1, 2008. Since changes of status normally require each person has an unbroken "chain" of valid nonimmigrant status, this is not possible when there is a "gap" in status. Therefore, most petitioning employers did not request changes of status for their prospective employees. Instead, they requested these cases be approved for processing at U.S. consulates abroad. This is referred to as consular notification of the H1B petition.
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These consular notification requests were in compliance with the regulations in place between April 1-7, 2008, the time when most H1B filings for students with OPT were made under the quota filings for fiscal year (FY) 2009. However, the new rule, which went into effect on April 8, 2008, provided for relief from this problem. Under the new rule, it is possible for an F-1 student, who would otherwise have a gap in status between OPT and H1B, to be regarded as continuing in legal status until the first day of employment on October 1, 2008, if certain conditions are met. One of those conditions is the filing of an H1B petition requesting a change of status. As a result, the USCIS specified procedures allowing those individuals, whose H1B petitions were filed requesting consular processing, to change that request to change of status. If the petition for consular notification has already been approved, "the petitioner should send an eMail to the USCIS service center that issued the approval, using the designated eMail address." When the petition is still pending, the petitioner should send a change-of-status request within 30 days after the issuance of the receipt notice. The specific addresses are listed in the Q/As, cited above.
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Extension of Employment Authorization and Grace Period
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Students whose prospective employers file H1B petitions on their behalf during the validity of the OPT employment authorization benefit from the extension of both their status and employment authorization. However, those students whose employers file H1B petitions during their prospective employees' 60-day grace periods following OPT have only their status extended - not the employment authorization. This is an important distinction that should be noted in order to avoid the potential for any unauthorized employment.
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For students who have their F-1 status extended under the cap-gap relief provisions, there remains a 60-day grace period even if the H1B petition is denied, rejected, or revoked while they are considered to be maintaining F-1 status. The 60-day grace period starts after the USCIS's decision on each H1B petition. However, those whose change-of-status requests are denied "due to discovery of status violation," and those whose petitions were revoked "based on a finding of fraud or misrepresentation," will be required to leave the U.S. immediately.
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