Immigration Law Associates
Chicago Lawyer, Attorney: Green Card, H-1B, National Interest Waiver, J-1, Spouse, Fiance, Student Visa, VAWA, Citizenship, Removal, Korean, Polish, Japanese, Spanish

Student Update

Up until a few years ago, a typical route most foreign students graduating from U.S. academic programs followed through was that the student begin working for the employer upon graduation on his post-completion OPT, then the employer files a H-1B petition and a change of status petition on behalf of the foreign graduate. However, this landscape has drastically changed over the recent years due to the notorious H-1B cap problem which limits the number of H-1B visas 65,000 annually.

While the globalization of the world economy and the expansion of the international market have significantly increased the U.S. companies' demand for foreign graduates and foreign workers over the last decade, the number of individuals who can be granted H-1B visas during each fiscal year has remained 65,000. As a result, during past few years, the 65,000 H-1B annual cap was reached on the very first day or within a few days from the earliest date that an employer can file an H-1B petition for the next fiscal year. Therefore, H-1B visas have become virtually unavailable throughout the rest of the year.

Another problem caused by the H-1B cap is that, even if a F-1 student is a beneficiary of an approved H-1B petition, under the previous regulations, s/he had to leave the United States if his or her F-1 status ended before his or her H-1B status began and had to apply for an H-1B visa at a consular post abroad.

In order to address these two major H-1B cap problems and to provide quality foreign labor essential to the U.S. companies, Department of Homeland Security released an interim final rule on April 4, 2008, extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students and automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. However, this new rule is a double-edged sword, providing not only many good benefits, but also imposing tricky restrictions that may cause misguided students to fall out of a valid student status. This update will decipher key provisions of the new rule applicable to all F-1 students eligible for OPT and beneficiaries of H-1B petitions, and provide practical advice to maintain a valid F-1 status for future immigration benefits. Special provisions applicable to F-1 students with a STEM degree will be discussed in the next issue.

Application Deadline and the Period of Employment Authorization

Under the prior regulations, F-1 students had to apply for post-completion OPT prior to graduation. However, the new rule allows F-1 students to apply for post-completion OPT up to 90 days before their program end date and up to 60 days after their program end date.

Since students cannot request a start date 60 days past the student's program end date and the last end date allowable under the rule is 14 months after the student's program end date, students should plan ahead to determine when to file OPT applications in order to fully utilize the full 12 months period. The application must be properly filed with the correct USCIS Service Center within 30 days of the date the student's DSO recommends OPT in SEVIS.

Type of Employment Allowed and Limits on Unemployment Period during OPT

It is important to note that OPT employment must be in a job that is related to the student's degree program. Except that, the rules regulating non-STEM extension OPT employment are quite flexible. The qualifying employment includes not only full time but also part time work (at least 20 hours per week). It also allows working for multiple employers and self-employment. Furthermore, if the work is at least 20 hours per week, volunteering or unpaid internship can also count as qualifying employment, as long as it does not violate any labor law.

However, the new rule imposes a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status. For students on regular post-completion OPT or an automatic extension due to the cap gap provisions, the limit is 90 days . Each day during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. The only exception is the period of up to 10 days between jobs. Thus, the student who travels outside of the U.S. while unemployed will continue to accrue unemployment days.

A student who has exceeded the period of unemployment while on post-completion OPT has violated his or her status unless he or she has applied to continue his or her education by a change of level or transferring to another SEVP-certified school, departed the U.S., or has taken actions to otherwise maintain his/her legal status. Therefore, it is strongly advised that a student who is at risk of violating his or her status due to the prolonged unemployment period should contact an experienced attorney to discuss his/her options.

H-1B Cap Gap

The time between the end of F-1 status and beginning of H-1B employment was referred to as the cap gap. This cap gap problem commonly occurs as majority of student's OPT ends in the spring or early summer, and his or her F-1 status expires 60 days after that, leaving a gap of several months before the individual's H-1B status begins on October 1. The prior regulations addressed the cap-gap problem by authorizing an extension of an F-1 stay, but they did not extend the student's employment authorization. This meant the student could remain in the U.S. until October 1, when the approved H-1B employment began, but could not work until then.

Under the new rule, the student's F-1 status is automatically extended when the student is the beneficiary of a properly filed H-1B petition for the next fiscal year. The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. If the H-1B petition for the student is selected, the student's F-1 status is extended to the start date of the H-1B status, and, if the student is in a period of authorized post-completion OPT on the date a H-1B petition is properly filed for the next fiscal year ("eligibility date"), the student's post-completion OPT is also automatically extended and he or she may continue working until September 30.

However, for a student who already completed his or her post-completion OPT and subsequently was in a valid grace period on the eligibility date, even if his or her F-1 status can be extended under the new rule, the employment authorization would not be extended because it already expired and the cap gap provision does not reinstate or retroactively grant employment authorization. This means that a student whose OPT ends before April 1 (i.e., December graduates) may stay in the U.S. until September 30, but could not be employed until October 1, even if H-1B petition for him or her is properly filed and approved.

As evidence of extended employment authorization and maintenance of a valid status for future immigration petitions, a student whose F-1 status is automatically extended may need to obtain a cap gap I-20 from his DSO.

Foreign Travel during Cap Gap Extension

A student who has an unexpired EAD for post-completion OPT and who is otherwise admissible may return to the U.S after a temporary foreign trip. By definition, however, the EAD of an F-1 student covered under a cap gap extension is necessarily expired. Therefore, it is strongly recommended that the student should be prepared to apply for an H-1B visa at a consular post abroad should he or she elects to travel outside the U.S. during the cap gap extension period.

Grace Period Following Rejection, Denial or Revocation of an H-1B petition

If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student, the student will have the standard 60-day grace period from the notification of the decision. However, the 60-day grace period does not apply to an F-1 student whose change of status request is denied due to discovery of a status violation or revoked based on a finding of fraud or misrepresentation discovered following approval. In these instances, the student is required to leave the U.S. immediately.

Reporting of Unemployment or Other Changes

Students on all types of post-completion OPT have reporting obligations. All must report any change of address within 10 days, any legal name change, and interruptions of employment. Student may be denied future immigration benefits if DHS determines that the student exceeded the limitation on unemployment or otherwise violated his or her status. Therefore, a student who plans to apply for a change of status to another non-immigrant status (such as H-1B) or permanent residency is strongly advised to maintain a close contact with his or her DSO throughout his OPT period and to consult an experienced immigration attorney prior to making a critical employment decision.


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