Saturday, March 17, 2012
Friday, March 16, 2012
Sunday, March 11, 2012
Saturday, March 10, 2012
USCIS ANNOUNCES NEW RULE ALLOWING EXTENSION OF OPTIONAL TRAINING PROGRAM FOR QUALIFIED STUDENTS
USCIS ANNOUNCES NEW RULE ALLOWING EXTENSION OF OPTIONAL
TRAINING PROGRAM FOR QUALIFIED STUDENTS
Rule Expands “Cap-Gap” Relief for Students with Pending H-1B Petitions
PRIOR F-1 REGULATIONS RELATING TO PRACTICAL TRAINING:
What is optional practical training?
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major
area of study. Under existing rules, an F-1 student may be authorized to receive up to 12 months of practical training either pre- and/or post- completion of studies.
• Pre-completion OPT:
An F-1 student may be authorized to participate in pre-completion OPT after he/she has been enrolled for
one full academic year. The pre-completion OPT must be directly related to the student’s course of study.
Students authorized to participate in pre-completion OPT must work part-time while school is in session.
They may work full time when school is not in session.
• Post-completion OPT:
An F-1 student may be authorized to participate in post-completion OPT upon completion of studies. The
post-completion OPT must be directly related to the student’s course of study.
What is the application process to participate in pre- or post-completion OPT?
• Students must initiate a request by having their Designated School Official (DSO) recommend the OPT
by endorsing Form I-20 and by making the appropriate notation in SEVIS, the system used to track F-1
academic students.
• Students then file Form I-765, Application for Employment Authorization Document (EAD), with
USCIS. If approved, the student will be issued an EAD.
• The student may begin engaging in pre- or post-completion OPT once an application has been approved
and an EAD has been issued.
How many students stand to benefit from today’s announcement?
• There are approximately 26,000 students on OPT that have earned a bachelor's, master's, or doctorate in a
STEM field. ICE and USCIS estimate that approximately 12,000 will take advantage of the STEM
extension. Some of these students will be selected for an H-1B to start October 2009. Others may choose
to continue their education, while some will depart the United States.
• We estimate another 10,000 students will benefit from the automatic "cap gap" extension.
What is the maximum duration of post-completion OPT?
• Under the new rule, certain students will be eligible to receive a 17 month STEM extension of postcompletion OPT. Do the periods of pre-completion OPT count against the available periods of post-completion OPT?
• Yes. All periods of pre-completion OPT are deducted from the available periods of post-completion
OPT.
Are there fees associated with filing for extended OPT?
• Yes. USCIS charges $380.00 when an applicant files an I-765 for optional practical training.
CURRENT H-1B/CAP GAP REGULATIONS FOR F-1 ACADEMIC STUDENTS:
What is the H-1B cap?
• The cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B
status during each fiscal year. For FY08, the cap is 65,000.
What is the cap-gap?
• Cap-gap occurs when an F-1 student’s status and work authorization expire in the current fiscal year,
before they can start their approved H-1B employment in the next fiscal year beginning on October 1. An
F-1 student in a cap-gap situation would have to leave the United States and return at the time his or her
H-1B status becomes effective at the beginning of the next fiscal year.
How does cap gap occur?
• Many employers file H-1B petitions on behalf of F-1 students after their post-completion OPT expires.
An employer can not file, and USCIS could not approve, an H-1B petition submitted earlier than six
months in advance of the date of actual need for the beneficiary’s services or training.
As a result, the earliest date that an employer can file an H-1B petition for consideration under the next
fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the
accompanying change of status request are approved, the earliest date that the student may start approved
H-1B employment is October 1.
Consequently, F-1 students who are the beneficiaries of approved H-1B petitions, but whose periods of
authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day
departure preparation period) expire before October 1, must leave the United States, apply for an H-1B
visa at a consular post abroad, and then seek readmission to the United States in H-1B status.
What are the current cap-gap regulations?
• Current regulations address the cap gap by authorizing an extension of the student’s authorized stay, but
they do not extend the student’s employment authorization. This extension was not automatic, which
meant that a notice had to be published in the Federal Register announcing the extension.
• When this Federal Register notice was published, the student’s authorized stay was extended, but not the
employment authorization. This means the student can remain in the United States until October 1, when
the approved H-1B employment can begin, but cannot work until then.
• If a Federal Register notice is not published, the student must leave the United States, apply for an H-1B
visa, and seek readmission to the United States in H-1B status.
How is the cap-gap situation changed under the interim final rule?
• F-1 academic students on post-completion OPT maintain valid F-1 status until the expiration of their
OPT. Once that OPT has ended, they are authorized to remain in the United States for up to 60 days to
prepare for departure. • This cap-gap extension automatically becomes effective when the H-1B cap has been reached and the
student has an H-1B petition filed on his/her behalf during the acceptance period.
• If the H-1B petition filed on behalf of the student is not selected during the acceptance period, the
automatic extension terminates when USCIS announces completion of the random selection on its public
web site.
• If the H-1B petition filed on behalf of the student is selected during the acceptance period, the student
may remain in the United States and continue working until the October 1 start date indicated on the
approved H-1B petition. The student may benefit from this provision only if he/she has not violated
his/her status.
What is covered and clarified under the interim OPT Rule?
• F-1 academic students may now apply for post-completion OPT 90 days before their academic programs
end and no later than 60 days after their academic programs end.
• This allows F-1 students seeking post-completion OPT to apply during their 60-day departure preparation
periods, in the same way that they are allowed to apply for H-1B status during their departure preparation
periods.
• This allows students to ensure that they meet graduation requirements before applying for postcompletion OPT.
Is there additional post-completion OPT available to students in the high-tech industry?
• F-1 academic students who receive science, technology, engineering, and mathematics (STEM) degrees
and who receive an initial grant of post-completion OPT, may apply for a 17-month extension for a
maximum of 29 months of post-completion OPT.
• This gives U.S. businesses two chances recruit these highly desirable graduates through the H-1B process.
Who is responsible for the development of the designated list of STEM degrees?
• The STEM Designated Degree Program List is based on the "Classification of Instructional Programs"
developed by the U.S. Department of Education's National Center for Education Statistics.
What are the eligible STEM degrees?
• To be eligible for the 17-month OPT extension, a student must have received a degree in one of the
following fields:
• Computer Science Applications • Life Sciences
• Actuarial Science • Mathematics
• Engineering • Military Technologies
• Engineering Technologies • Physical Sciences.
• The STEM degree list is posted on http://www.ice.gov/sevis.
What are the eligibility requirements for the 17-month extension of post-completion OPT?
• The student must have a bachelor’s, master’s or doctorate degree in a STEM field.
• The employer must be enrolled in E-Verify.
• The student must apply on time (at least 90 days before the current post-completion OPT expires). What is the E-Verify program?
• The E-Verify program is an internet-based system operated by USCIS, in partnership with the Social
Security Administration (SSA).
• The E-Verify program currently is the best means available for employers to determine employment
eligibility of new hires and the validity of their Social Security Numbers.
• E-Verify electronically compares information contained on the Employment Eligibility Verification Form
I-9 with records contained in SSA and DHS databases to help employers verify identity and employment
eligibility of newly-hired employees.
Is there a cost associated with employers participating in the E-Verify program?
• No, E-Verify is a free, easy to use web-based system available to employers and in all 50 states, the
District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.
What is the application process for the 17-month STEM extension?
• The student files Form I-765 with USCIS, Form I-20 endorsed by the DSO, a copy of the STEM degree,
and the required application fee.
• Form I-765 is being amended to require the student to indicate the degree and provide the employer’s EVerify information.
• Students who timely file their STEM extension applications with USCIS may continue working while
their applications are pending for 180 days or the date of the decision, whichever date is earlier.
• This interim extension minimizes disruption in the student’s employment and also ensures that employers
will conduct the necessary employment eligibility re-verification.
What must a student do after being granted the 17-month STEM extension?
• The student must report to his or her DSO (by email, within 10 days) any change in:
- Legal name;
- Residential and mailing address;
- E-mail address;
- Employer name;
- Employer address;
- Job title or position;
- Supervisor name and contact information;
- Employment start-date; and
- Employment end-date
• The student must also report to his or her DSO every six months (by email), confirming the information
listed above; even if there have been no changes.
• The requirement to report continues if the student’s 17-month STEM extension is extended further by the
automatic cap-gap extension. LINK TO USCIS MEMO
OPT Extensions under H-1B Cap-Gap Regulations
These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.
Questions & Answers
Q1. What is “Cap-Gap”?A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.
Q2. How does “Cap-Gap” Occur?A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.
Q3. Which petitions and beneficiaries qualify for a cap-gap extension?
A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.
Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
.
Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).
Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.
Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.
Q4. How does a student covered under the cap-gap extension obtain proof of continuing status? A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.
If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.
Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.
For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.
Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.
Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?A7. That is correct. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).
Q8. Do the limits on unemployment time apply to students with a cap-gap extension?A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.
Q9. What is a STEM OPT extension?A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.
Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.
Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.
Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:
- The student finds employment appropriate to his or her OPT
- The period of OPT is unexpired; and
- The DSO has requested a data fix in SEVIS
Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.
Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.
If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.
Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.
If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.
Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.
If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.
Subscribe to:
Posts (Atom)