USCIS issues FAQ on F-1 "cap-gap" OPT extensions

USCIS has just issued an FAQ 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 10/1/10; and (c) have been approved for H-1B status to start on 10/1/10. Without cap-gap relief, these students would fall out of status before 10/1/10, 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 FAQ explains:

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

The FAQ explains how to get this extension:

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st.  Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

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

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

Can my spouse or children work when they accompany me to the US?

Foreign nationals usually want to know if their spouse and/or children can work when the family moves to the US because of the principal's job. Unfortunately, the answer is "No' in most cases, which can be very difficult for spouses who are used to having their own career and income in their home country.

The spouse will be eligible for work authorization if s/he is in dependent L-2 or E status. Spouses of people working in the US in status other than L-1 or E are not eligible to work in their dependent status (with limited exceptions for J-2 spouses). They may be eligible for another status, independent of the principal, that would allow them to work. Children in dependent status, except at the final stage of the green card process, cannot get work authorization.

The spouse can get work authorization by filing a Form I-765 with the USCIS. This can be done once s/he has entered the US in E/L status, and takes about 3-4 months for approval. Until the I-765 is approved, the spouse cannot work.