• DHS Interim Final Rule Extends Optional Practical Training, Expands "Cap-Gap" Relief for Student Visa Holders
  • May 15, 2008 | Authors: Teresita Angela Tan Mercado; Rebekah J. Poston; Brian E. Schield; Gregory A. Wald
  • Law Firms: Squire, Sanders & Dempsey L.L.P. - Phoenix Office ; Squire, Sanders & Dempsey L.L.P. - Miami Office ; Squire, Sanders & Dempsey L.L.P. - Los Angeles Office ; Squire, Sanders & Dempsey L.L.P. - San Francisco Office
  • The Department of Homeland Security (DHS), US Citizenship and Immigration Services (USCIS), Bureau of Immigration and Customs Enforcement (ICE), issued an interim final rule with request for comments on April 8, 2008 that extends the period of Optional Practical Training (OPT) for certain F-1 non-immigrant students and also expands "cap-gap" relief for all F-1 students with pending H-1B petitions.

    Currently, foreign students enrolled full time for at least one full academic year in a higher education institution certified by ICE are eligible for 12 months of OPT and may work for a US employer in a job directly related to that student's field of study. The new rule extends the OPT period to 29 months for F-1 non-immigrant students who (1) complete a science, technology, engineering or mathematics (STEM) degree and (2) accept employment with an employer enrolled in USCIS' E-Verify employment verification program. Read more on E-Verify.

    In addition, the interim rule expands "cap-gap" relief for all F-1 students with pending H-1B petitions. Many employers who hire F-1 students through OPT eventually file an H-1B petition on the student's behalf. However, Congress has prohibited USCIS from granting more than 65,000 H-1B visas each fiscal year (the "cap"), and many more than 65,000 H-1B petitions are filed each year. This year USCIS received approximately 163,000 petitions within the first five days of the eligible filing period. As a result, OPT employees are often unable to change their status within the time period authorized by their F-1 status.

    The "cap-gap" occurs because employers cannot file an H-1B petition until six months before the start date of employment (i.e., the earliest date an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1 for an October 1 start date). Therefore, F-1 students who are the beneficiaries of an approved H-1B petition, but whose period of authorized stay (including OPT time) expires before the October 1 start date, have a gap in authorized stay. F-1 students in a "cap-gap" period must leave the United States after their authorized stay expires and then return when their H-1B status becomes effective.

    USCIS is already authorized to extend F-1 status for students caught in the "cap-gap" between graduation and the start date of H-1B employment. Currently, however, before USCIS can extend F-1 status to any students, it must publish notice in the Federal Register that the H-1B cap has been reached and that status is extended for students with pending H-1B petitions. Due to the oversubscribed H-1B category, the existing notice regulations are ineffective in addressing the "cap-gap" problem faced by students and employers. The interim rule eliminates the regulations requiring Federal Register notice and extends the authorized period of stay and work authorization of any F-1 student who is the beneficiary of a timely-filed H-1B petition that was granted by, or is pending with, USCIS. The extension of status and work authorization terminates on October 1 of the fiscal year for which the H-1B visa was requested.