Update on H-1B "Cap-Gap"

Update on H-1B "Cap-Gap"
April 28, 2008

April 28, 2008

USCIS issued an Interim Final Rule Extending the Period of Optional Practical Training and Expanding Cap-Gap Relief for all F-1 Students. Our summary of the H-1B Cap Gap Rule, with the USCIS revision follows:

H1B Cap Gap Rule:

An F-1 student's (and F-2 dependent's) lawful status and OPT employment authorization will automatically be extended to October 1 if:

The F-1 student is the beneficiary of a properly filed H-1B petition and request for a change of status in the US. The automatic extension does not apply to cases where the H-1B was filed with a request for consular notification. However, it is may be possible to amend the H-1B petition from consular processing to change of status so that the F-1 student can take advantage of the automatic OPT extension rule within 30 days of the issuance of the receipt notice.

The H-1B petition MUST have been "timely filed" (filed between April 1 to April 7, 2008 for FY 2009).

The automatic extension ends on October 1 unless the H-1B petition is rejected, denied or revoked, in which case automatic extension of F-1 status and employment authorization are immediately terminated. Upon termination prior to October 1, F-1 student is still entitled to 60 day period of preparation for departure from the United States.

Unlike OPT 17-month extension, H-1B cap gap rule is not limited to students in STEM fields.

NOTE: THIS INTERIM FINAL RULE MAKES THE H-1B CAP GAP RULE A PERMANENT SOLUTION