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is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked.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
USCIS will accept H-1B petitions for the Fiscal Year 2011 starting on April 1, 2010. In the past, it was possible to prepare and file a petition in a matter of days or less, so we were able to file petitions with very little noce in emergencies. This is no longer possible, because the Department of Labor has changed the procedure for certifying Labor Condition Applications (LCAs). LCAs are filed electronically and used to be certified almost instantly. Now it takes a week or more to get an approved LCA, and the H-1B petition cannot be filed without an approved LCA.
For a few months, from November 5, 2009 to March 9, 2010, CIS accepted petitions without an approved LCA, acknowledging that the delays in LCA approvals could be very difficult for employers and foreign nationals. However, CIS just announced (see here) that it would not extend that temporary measure. As of March 10, 2010, CIS will reject any H-1B petition filed without an LCA certified by DOL.
The USCIS has issued guidelines for petitioners filing cap-subject H-1B petitions for Fiscal year 2011. The guidance explains what that cap is, what petitions are subject to the cap, filing fees, where to file, etc. See here.
As the H-1B filing season approaches, I see many questions about exempt organization, such as what employers are exempt from the H-1B cap, and how a person can change from a cap-exempt to a cap-subject employer.
When is an employer not subject to the H-1B cap?
An employer is exempt from the H-1B cap if it is:
1) an institution of higher education; or
2) a non-profit entity that is affiliated with an institute of higher education; or
3) a nonprofit research organization; or
4) a governmental research organization.
My employer in non-profit, is it subject to the H-1B cap?
Maybe. Not all non-profit entities are exempt from the H-1B cap. The exemption only covers non-profits that are research institutions, or are formally affiliated with an exempt educational institution.
Am I subject to the H-1B cap if I change from a cap-exempt to a cap-subject employer?
Yes. You could not start working for the new employer until you had H-1B status for that employer, unless you can use H-1B portability. There is a CIS letterfrom May 2007 stating that portability applies even when a foreign national is moving from a cap-exempt to a cap-subject employer, so that the foreign national can start working for the new employer, even if no H-1B numbers are available. However, the letter refers to a situation where the cap-subject H-1B was filed after4/1 that year, so that theoretically the petition could be approved, justfor a 10/1 start date.I don't think portability would apply if the cap-subject H-1B was filed at a time that it would be rejected as too early, like now.
What if I work for a cap-subject and cap-exempt employer concurrently?
Good question. Normally, an employee who is subject to the H-1B cap cannot get H-1B approval if there is no H-1B visas available. However, it is possible to to get approval of concurrent employment with a cap-subject employer, even if no cap number is available. There is a CIS memo from 2008 (Neufeld Memo) that specifically states that
USCIS does not require that an alien who is cap-exempt...be counted towards the [H-1B cap] if they accept concurrent employment with a non-exempt employer.
If the employee stops working for the cap-exempt employer, any subsequent H-1B petitions by the cap-subject employer will be denied unless there are H-1B numbers available.
What if I work for in Guam or CNMI?
If your work is performed only in Guam or the Commonwealth of the Northern Mariana Islands (CNMI), you are not subject to the cap. You must only work in CNMI or Guam, you cannot work elsewhere under this rule. See here for details.
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
The H-1B cap deadline is next week. All petitions for a new H-1B to start anytime from 10/1/09 to 9/31/10 (unless for a cap-exempt organization) need to be filed with USCIS by April 1, 2009. As reminder, the people most like to need a H-1B in that period include:
foreign national students whose current work authorization expires before 9/30/10;
people who need to change from another work-authorized status, e.g. TN holders who want to start permanent residence or L-1B holders reaching their maximum stay; and
people who might not need H-1B status till after 10/1/10, but want more than one chance at the H-1B lottery. This means that foreign nationals reaching their maximum L-1 stay before 10/1/2011 should possibly apply for H-1B status by 4/1/09.
To help employers and their attorneys, USCIS released various guidance documents listed here. These documents include information on the H-1B restrictions that apply to employers who received TARP funding (see earlier posting here) and on the 2010 cap general, including a Question and Answer format here.
