U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough regular H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the "advanced degree" exemption. Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.

USCIS will carry out a computer-generated random selection process for all cap-subject petitions received, including the 65,000 for the general category and 20,000 under the "advanced degree" exemption limit. In so doing, the agency will conduct the selection process for "advanced degree" exemption petitions first. All "advanced degree" petitions not selected will then be part of the random selection process for the 65,000 limit. USCIS will reject and return filing fees for all cap-subject petitions not randomly selected.

OPT Cap-Gap/STEM Extension rule released by DHS

The U.S. Department of Homeland Security (DHS) released an interim final rule positively affecting F-1 students on Optional Practical Training (OPT) for whom employers filed H petitions.

If you, as an employer, filed an H-1B cap-gap petition for an F-1 student last week and it is accepted, there may be an opportunity to avoid the gap in employment authorization between the end of the F-1 student's OPT and the October 1st H-1B start date. F-1 students may also be able to avoid a trip outside the U.S. to apply for an H-1B visa before October 1. Further, if you have filed a cap-subject H-1B petition for a current F-1 OPT employee and that petition is NOT accepted for processing under this year's H-1B cap, F-1 students with STEM degrees (science, technology, engineering, and mathematics) may be able to receive an extension of his or her OPT for an additional 17 months.

As background, F-1 students commonly obtain OPT for 12 months following completion of studies. As most students graduate in May, OPT commonly runs from May to May or June to June. Employers that wish to continue the employment of F-1 OPT students typically seek to change their status to H-1Bs but face challenges since the earliest date the F-1 student can commence H-1B employment is October 1. As a result, 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.

The DHS' interim rule purports to address the cap-gap by extending the authorized period of stay and work authorization of any F-1 student who is the beneficiary of a timely-filed H-1B petition (with an October 1 start date) that has been granted by, or remains pending with, U.S. Citizenship and Immigration Services (USCIS). This automatic extension will terminate upon rejection, denial or revocation of the H-1B petition.

For those F-1 students participating in approved post-completion OPT, but who are not chosen in the lottery, they may apply for a 17-month extension for a maximum of 29 months of post-completion OPT. To qualify for the 17-month extension, an F-1 student must:

  • Have completed a designated STEM degree (science, technology, engineering, and mathematics. STEM degree list at http://www.ice.gov/sevis) from a U.S. college/ university that participates in the Student and Exchange Visitor Information System (SEVIS);
  • Be working for a U.S. employer in a job directly related to the student's field of study; and
  • Be working for, or accepted employment with, an employer enrolled in USCIS' E-Verify program. (E-Verify is USCIS' internet-based employment eligibility verification system.)

As with any new interim rule, there are clarifications and technical process guidance needed. However, this bold and positive step by DHS to resolve the cap-gap is to be commended.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.