Columbus Ohio H-1B Visa Immigration Lawyer: “Students Should Benefit from Gap Cap Rule Even After Expiration of OPT Card During the Grace Period”

graduation_1813.jpgGood news for International Students currently studying in Columbus, Ohio and nationwide: USCIS Regulations provide for relief to F-1 visa students present in the US on Optional Practical Training whose OPT cards expire prior to October 1, 2011 and who are also the beneficiaries of H-1B visa petitions filed by their employers.

It used to be that F-1 students presently working in the US on OPT cards that expired prior to the begging of cap subject H-1B visa (October 1), that they had to depart the US and avail themselves to a US embassy in their country, obtain an H-1B visa and return to the US to rejoin their employers. This was known as the “Cap Gap.” Some years, the USCIS issued a rule allowing such students to remain in the US between the expiration of their OPT period and October 1. All that changed on April 2008 when the USCIS issued regulations that affirmatively to dealt with the problems caused by the cap gap.

Under these rules, the lawful status of an F-1 student who is the beneficiary of an H-1B petition and a request for change of status will be automatically extended, along with any grant of optional practical training (OPT) work authorization, until October 1 of the fiscal year for which H-1B status is being requested . This extension will allow F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1. The rule requires the H-1B petition to be “timely filed”; it does not require the H-1B petition to be approved before the automatic extensions can take effect. An application is generally considered “filed” once it is accepted for processing by USCIS. Please note that a timely filed H-1B visa petition included any petition filed prior to the expiration of “Grace Period” which terminates 60 days after the expiration of the OPT card. In other words, an F-1 visa student whose OPT card expires on May 1, 2010 may take advantage of the cap gap rule during the grace period by having an employer file a bona fide H-1B visa petition prior to July 30, 2010.

If the H-1B petition is rejected, denied or revoked, the automatic extension of status and work authorization will immediately terminate. Initially, it was unclear how the rule applies to an F-1 student who is the beneficiary of an H-1B petition that requested consular processing rather than a change of status. USCIS addressed this technical issue in subsequent written guidance issued on April 18, 2008. The agency will allow an H-1B petition filed on behalf of an F-1 student to be upgraded to request a change of status to H-1B so that the student can take advantage of the agency’s new “cap gap” rule.