Immigration Alert: USCIS Releases Interim Rule Addressing H-1B "Cap Gap" and Extending Some OPT-Based EADs


On April 8, 2008 the U.S. Department of Homeland Security (DHS) published an interim final rule addressing three very important issues regarding Optional Practical Training (OPT) for F-1 students, outlined below. Though the DHS will accept comments on this rule for the next 60 days—and could make changes based on those comments—the rule went into effect as of Tuesday, April 8, 2008. Given that this significant announcement came after most of this year’s cap-subject H-1B petitions were filed, this rule is certain to generate a great deal of feedback from the immigration


The most important and broadly applicable change is the “cap-gap” relief that this new rule provides. As many employers are aware, many of their F-1 students’ OPT will expire before H-1B status can even begin on October 1st. The new rule allows for an extension of status and work authorization through October 1st for any F-1 student who is the beneficiary of a cap-subject H-1B petition and for whom a request for change of status was made. U.S. Citizenship and Immigration Services (USCIS) has not made this relief available for H-1B petitions that requested consular notification and not a change of status. We expect USCIS will further clarify what steps employers should take to obtain an extension of employment authorization for F-1 students whose petitions were selected, but for whom consular processing was selected. In summary, the individuals who benefit from this new rule will now be able to continue to work until October 1st, but must stop working if notified that either the H-1B petition is denied or that the H-1B petition was not chosen in the lottery and the petition is returned.

The second major change described in this rule is an extension of the maximum validity period of OPT from 12 to 29 months for students with degrees in science, technology, engineering, or mathematics (STEM) vocations whose employer has enrolled in the USCIS E-Verify program. See article for more info...

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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