H-1B "cap gap" Fact Sheet for employers issued by ICE

The Department of Homeland Security's Immigration and Customs Enforcement (ICE) division has just issued a Fact Sheet on the "cap-gap" extension of employment authorization for F-1 students.

The cap gap relief applies to F-1 students who (a) are working pursuant to Optional Practical Training; (b) have F-1 status that will expire more than 60 days before 10/1/09; and (c) have been approved for H-1B status to start on 10/1/09. Without cap-gap relief, these students would fall out of status before 10/1/09, so would need to leave the US and return once the H-1B status could start. This could mean a gap of months if the F-1 status expired in early summer.

The cap gap provision automatically extends the F-1 status and OPT, if applicable. As the Fact Sheet explains:

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, on page 3. This document serves as proof of continued employment authorization.

The automatic extension of an F-1 student's duration of status and employment authorization is terminated upon the rejection, denial, or revocation of the H-1B petition filed on the F-1 student's behalf.

The Fact Sheet explains the employer's and student's responsibilities regarding getting this cap-gap extension. For more information on this provision, see here.

For information on the H-1B cap: http://martinvisalaw.blogspot.com/2009/03/new-guidelines-for-h-1b-cap-cases-from.html