f-1 opt & cap gap




USCIS issued an Interim Final Rule on April 8, 2008, introducing “cap gap” relief to those foreign students holding F-1 visa status and optional practical training expiring this summer who submitted H-1B cap cases for employment starting October 1, 2008.  The Interim Final Rule automatically extends the period of stay and work authorization for any F-1 student with a properly filed H-1B petition and change of status request pending with USCIS, including those cases awaiting the lottery.  If USCIS rejects or denies the H-1 petition, the F-1 student will be granted the standard 60 day period (after notification or rejection of the petition) in which to leave the


.   Many petitions filed by this office requested “consular notification” rather than a change of status, as such request was not available until April 8, after the period of time for submission of H-1B cap cases had ended.  To address this, USCIS has put into place a system whereby the change of status may be requested retroactively by e-mail within 30 days of issuance of a filing receipt.

In addition, an extension of Optional Practical Training status will be granted from 12 to 29 months for those F-1 students with majors in specific fields in Science, Technology, Engineering or the mathematics areas.  Rigorous steps relating to this extension request include notification to the Designated School Official by the student, the requirement to maintain status, and the requirement of a


employer to participate in the US Government’s E-verify Program comprise major portions of these new regulations.

For detailed Questions & Answers regarding these regulations, please visit the USCIS website at http://www.uscis.gov/files/article/OPT_4Apr08.pdf .  Please contact a partner in this office to discuss the ramifications of these regulations and how they might affect you!

For Further Information On How We Can Help Your Firm Meet Its Employment Eligibility Verification Obligations, Please Contact Amy Wildes At amy@wildeslaw.com

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