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is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.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

Can I change from H-1B to F-1?

I have written a couple of blog postings about the effect of layoffs on H-1B workers (see links below). Another common question in this regard is whether the H-1B worker can change to F-1 status and, perhaps, change back to H-1B again if they find another job. Some actual examples of the questions are:

"If I am on H1B visa but I have been laid off by my current employer and they will announce my leaving in one month. I am planning to change to F1 status. If I get another employer later on that sponsor again my visa. Do I get subject to a cap?"

"I have been on an H1B visa for 2.5 years; I am considering attending grad school in Minnesota for my MSME in the Fall, so I would be switching to an F-1 student visa.
My question is: if after I graduate with my Master's Degree, I apply for & get another H1B job - so I switch from F-1 back to H1B visa - do I get a fresh 6 year timeclock started on my new H1B? Or, do I only have 3.5 years left that I can be in H1B status - because of my H1B work time before the F-1/grad school?"

"I have been on the H-1B visa for 1 and a half years.I was laid off recently and am planning to attend school which starts in July 09.
i) Do I need a F-1 visa apart from an I-20?
ii) Do I need to go out of US for stamping?"

Answer:

H-1B to F-1:

A H-1B holder can change fro H-1B to F-1 if she meets all the requirements for F-1 status, including having nonimmigrant intent. "Nonimmigrant intent" means that she needs to show that she intends intend to return to her home country at the end of her studies. Having been here in H-1B status, especially if she has been here a long time, makes it more difficult to show the required nonimmigrant intent. If the applicant or her employer has filed for permanent residence, this completely contradicts nonimmigrant intent.

Despite these warnings, it is not impossible to prove nonimmigrant intent. In addition to this evidence, the F-1 applicant needs to show (a) that she has enrolled in a school and has an endorsed I-20; (b) that she has sufficient funds to pay the expenses for and dependents while studying; and (c) that she will be maintaining status up to the start of classes.

Do I need to leave the US to get an F-1 visa?

The F-1 application could be decided in a number of ways, assuming it is not denied completely. At best, the foreign national could get approval for an automatic change of status to F-1. This would operate to automatically change the foreign national's status to F-1 without the need to leave the US.

However, if the applicant cannot prove maintenance of status, CIS might just approve the F-1 part of the petition, but not the automatic change of status part. This means that the foreign national would need to leave the US and get an F-1 visa at a consulate before returning in F-1 status. The consulate will need eveidence of nonimmigrant intent, as explained above.

Please see here for the difference between "visa" and "status".

Changing back to H-1B later

If the foreign national finds a new employer who files a new H-1B petition, this new petition is not subject to the H-1B cap. The foreign national has already been included in the cap within the past 6 years, so he is not counted again. The only way that the employee would be subject to the cap again is if (a) he used a full 6 years in H-1B status, and then spent one full year outside the US; OR (b) was moving from a cap-exempt H-1B employer to a cap-subject employer.

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Prior postings on layoffs here.

Photo by http://www.flickr.com/photos/david55king/

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

Bank of America withdraws job offers for foreign students

The Financial Times today reports that Bank of America has withdrawn job offers to foreign graduates, because of the restrictions on H-1B hiring that are contained in the stimulus package. As reported in the Financial Times:

The recently passed $787bn stimulus bill in effect prevents financial institutions that have received money from the government’s troubled asset relief programme from applying for H1-B visas for highly skilled immigrants if they have recently made US workers redundant.......

Traditionally, about a third of MBA students at the leading US schools have taken up finance and banking jobs on graduation, with about a third of those MBAs coming from outside the US.

(I blogged about these restrictions a few weeks ago: martinvisalaw.blogspot.com/2009/02/stimulus-bill-restricts-h-1b-new-hires.html.)

While the BofA plans might affect only 50 students, business schools are concerned that other banks will need to withdraw their job offers also.

Despite this news, experts predict that the H-1B quota will again be reached within days of April 1. We recommend that all employers with potential H-1B cases contact their attorney immediately, if not already done. My law firm started preparing its H-1B cap cases in February, to be certain that they are ready to be filed on April 1.

State Department shows increase in student visas approved in 2008

In fiscal year (FY) 2008, the U.S. Department of State issued a record high number (710,631) student and exchange visitor visas. This is a 9.1% increase from FY 2007; and over 26% more than FY 2001. The State Department issued almost 40% more student and exchange visitor visas to Chinese nationals than in FY 2007, which was itself 40% more than 2006.

I find it especially encouraging that there are major increases in the number of visas issued to visitors from the Middle East - 26.2% more in 2008 than in 2007. However, the big question is whether these students can stay in the US after they graduate, and use their education here. Unless Congress increases the H-1B quota, that seems unlikely.

The press release states that "The State Department, along with the Department of Homeland Security and other U.S. government agencies, recognizes that one of the foundations of the U.S. academic and scientific communities is vibrant international participation. America’s outstanding academic and research institutions are as valuable to U.S. national security as protection of our borders."