Students Facing Gap in Status May Enjoy Relief
Posted Jun 25, 2004
There may be some relief for students who are facing a gap in their status due to the H1B cap this fiscal year. On June 18, 2004, the U.S. Department of Homeland Security (DHS) sent a Notice to the Office of Management and Budget (OMB) that addresses the H1B numerical limitation as it affects F student nonimmigrants. The notice itself has not been released, but it likely addresses the gap in status faced by many F-1 students (and possibly those on J international exchange students or M vocational students statuses), as the result of the H1B cap.
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Many students have Optional Practical Training (OPT) with an expiration date which is more than sixty days prior to October 1, 2004. For those who may know, after the F-1 student completes her/his program and the OPT, there is an additional 60-day "grace period" when the F-1 student and all dependent family members are considered to be maintaining lawful status. Thus, these F-1 students face a gap in status between the OPT and the first available date they can obtain an H1B. Due to the fact that the quota for this fiscal year (FY) was met on February 17, 2004, the first available date is not until October 1, 2004, which is the beginning of FY2005. Those with OPT expiring 60 days or less before October 1, 2004 are covered by the grace period following the end of OPT. For J-1s, the grace period is only 30 days. Those who are outside of the grace period face a serious problem. If they cannot bridge this gap, they have to leave the United States, obtain the H1B visa at the consulate in the home country, and reenter the U.S. in H1B status. The last time the H1B cap was met, the Legacy INS issued a regulation that essentially bridged the gap and allowed all such students to remain in the U.S. during the break in status. The prior announcement applied to both F-1 students and J-1 exchange visitors. For FY2004, despite the fact that the cap was reached in February, there so far has been no such announcement from the USCIS.
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The potential issuance of this relief was foreshadowed at the AILA National Conference and mentioned in our June 18, 2004 article, USCIS Update - June 2004, available on MurthyDotCom. The content of the notice is not yet available. It is not known if it will apply to J-1s (international exchange visitors and students) or M-1s (vocational students) in addition to F-1 students. It is also not known whether there will be any solution for individuals who have already applied for a change in status but were denied. Of course, there are likely others who have not even requested the change of status, since it was not permitted under the regulations at the time of filing.
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As our regular readers know from following the PERM regulation, the OMB has up to 90 days to review notices and regulations. The OMB sometimes moves much faster than the 90 days, while at other times the agencies requesting the OMB review may request extensions of the review period. Since this issue is of great significance to many, we will be following it closely to share any developments with our MurthyDotCom and MurthyBulletin readers.
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