"Cap Gap" Info

updated May 27, 2008

Guidance issued by USCIS
Travel with expired EAD not advisable

The USCIS has issued new guidance on the "cap gap.

Of immediate interest is a statement that an F-1 student working with cap gap authorization and with an expired EAD, cannot return to the U.S. in F-1 status to continue employment.

If you are an F-1 student, and your EAD expires before October 1st, you may remain in the US and continue working until October 1st if you qualify for "cap gap" (see discussion below). But if you leave the U.S. - even with an I-20 which reflects your automatic employment extension, you will not be permitted to return to the U.S. to continue working before October 1st. If your H-1b petition is approved, you may apply for an H-1b visa, and return after October 1st.

The guidance also provides instructions to employers as to how to document "cap gap" employment authorization for I-9 purposes.

updated May 15, 2008 -

What you need to know if you are an F-1 student with OPT....

If your employer has filed an H-1b petition for you, with a change of status requested as of October 1st, your EAD is extended until at least June 2nd, or ten days after the H-1b petition is rejected under the cap (whichever is first.)

If your employer receives a receipt for your H-1b filing, indicating it has been accepted under the "cap" your EAD is extended until September 30, 2008, or until ten days after the USCIS denies the application (whichever is first.) Your F-1 status (but not your employment authorization) is valid until 60 days after the denial, should the petition be denied.

Your DSO can issue an updated I-20 reflecting the automatic extension. This is critical if you plan to travel, and advisable in any case as it assures that your SEVIS record will properly reflect your extension.

If you have a "cap gap" extension, you may travel during the extension period, provided you have a "valid EAD." Your I-20 must be annotated to show the extension!

ICE (Immigration and Customs Enforcement) controls the SEVIS program and has issued an advisory with more detail.

updated April 21, 2008

USCIS has announced a policy to allow applicants to amend petitions to request a change of status, where the petition initially requested consular notification. The request cannot be made until a receipt for filing is in hand.
163,000 petitions were received for 65,000 H-1bs. 31,200 of those were for the "advanced degree" category.
The "random selection" was completed on April 15 2008 - USCIS has promised that all receipts will be issued by June 2, 2008.
The odds....... about 5 out of 6 with advanced degrees will be accepted in either the advanced degree category - or in the "regular" category. About 45% of the applicants for the "regular" cap will be accepted.

OPT Extended! "Cap gap" ends!

EADs extended to October 1st for those with pending H-1bs.

Some students to benefit from EADs up to 29 months

April 5, 2008
Prepared as general information for clients of the Law Offices of Jay I. Solomon. For specific legal advice, please consult your attorney.

New Rule

The Department of Homeland Security announced on April 4, 2008 a new regulation which does this:

IF you are an F-1 student whose currently valid EAD for Optional Practical Training expires before October 1^st, and there is a properly filed approved or pending petition to change your status to H-1b beginning next October 1^st, then,

Your EAD and your F-1 student status are automatically extended until October 1^st, (unless the H-1b petition filed on your behalf is denied.)

If you are an F-1 student with a degree in science, technology, engineering or mathematics ("STEM"), and you have an EAD and are working in your field for an employer enrolled in the Department of Homeland Security’s SAVE Program, then with the endorsement of you DSO,

- you may file an application to extend your employment authorization for an additional 17 months (29 months total).

- your EAD will be automatically extended up to 180 days while your application is pending

- your employer will be required to report termination of your employment to your DSO

- your DSO will report the details of your employment, and the maintenance of your status through SEVIS

If you are an F-1 student completing an academic program,

you may now apply for Optional Practical Training up to 60 days after completion of your academic program. (You may still chose to apply up to 90 days prior to completion of the program.)

IMPLEMENTATION

The extension of OPT/EAD/DS through October 1^st is automatic, immediate, and applies to all eligible F-1 students.

The 17 month extension for STEM graduates is not automatic or self implementing. It requires program changes to SEVIS, a new Form I-765, and training of Designated School Officials ("DSO"). Implementation is unlikely to be immediate. The extension is not automatic. EADs for STEM graduates will still be issued for an initial 12 months. The new rule provides for an extension for certain eligible graduates. The procedures for filing that extension are not yet in place.

Cap Gap is gone

A new H-1b petition may be filed six months in advance of the start date. The government’s "year" begins on October 1^st. Due to the annual "cap" on H-1bs, on April 1^st, employers file for new H-1bs to begin working no earlier than October 1^st. If a student’s status or employment authorization ends between the time an application is filed and October 1^st, then there will be a "gap" in their work authorization, or in their status.

The new regulation provides an automatic extension for F-1 students working on Optional Practical Training on whose behalf an H-1b petition an application has been filed which requested a start date of October 1^st. The student’s authorized stay and their employment authorization are extended until either October 1^st, or until the H-1b petition is denied - whichever comes first.

This extension is automatic for qualified students. No additional application is required.

17 Month EAD Extension

This regulation was published to "address the immediate competitive disadvantage faced by U.S. high tech industries" in obtaining and retaining certain highly skilled workers.

An F-1 student completing their academic program, may apply for "OPT" ("optional practical training") for up to one year to gain experience in their field. The application is made based on an endorsement by the DSO, and employment is authorized once the USCIS approves the application and issues an "EAD" ("employment authorization document").

Certain students may be eligible to apply to extend the EAD for an additional 17 months.

The requirements relate to:

the degree
the employer
cooperation from the DSO
they type of job

Degree Requirements for 17 month extension

To be eligible for the 17 month extension, a student’s degree must be in one of the following areas:

Actuarial Science
Computer Science (other than data entry/microcomputer applications)
Engineering
Engineering Technologies
Biological and Biomedical Sciences
Mathematics and Statistics
Military Technologies
Physical Sciences
Science Technologies
Medical Scientist (MS or PhD)

The classification of the degree is based on the degree program - not merely the degree title. The Classification of Instructional Programs developed by the U.S. Department of Education National Center for Education Statistics it utilized to determine degree classification.

Employer Requirements

To be eligible for the 17 month extension, the student must be working for an employer enrolled in the E-Verify program. Only one percent of employers are currently enrolled in E-Verify. Participating in E-Verify requires an application by the company, and agreement to a "Memorandum of Understanding." It involves an ongoing commitment to utilize E-Verify to verify the status of EVERY new employee - not just F-1 students.

Most employers are not currently enrolled in E-Verify. There are costs and burdens as well as benefits to this program beyond those related to OPT extensions. Whether to enroll in E-Verify will be a business decision for each employer and will be driven by many factors.

If a student applies for a 17 month extension, the employer must agree to notify the student’s DSO within 48 hours should the student’s employment end.

DSO role

To be eligible for the 17 month extension, a student must request that their DSO recommend the extension. The DSO will verify the student’s eligibility, certify that the student’s degree is on the STEM Designated Degree Program List, and assure that the student and employer are aware of their responsibilities for maintaining status..

The recommendation by the DSO is made through the online SEVIS database. It requires an interface which as of this writing, is not available.

The student is required to report to the DSO every six months to verify continued eligibility. The employer is required to report any termination in employment. The DSO will enter these reports into SEVIS.

The student must also report to the DSO within 10 days, any change of name, mailing or residential address, employer name and address, and interruption or loss of employment. The DSO will update SEVIS with this information.

Type of Job

The employment must be in the area of the student's education (i.e. STEM). Students with OPT are now expected to be employed to maintain status. Students may not have more than 90 days cumulative of unemployment during post-completion OPT. If they have been granted a 17 month extension, the cumulative time unemployed may not exceed 120 days.

Open Questions

This analysis has been prepared immediately upon publication of the Interim Final Rule. There has been no guidance or interpretation from the USCIS beyond a press release, and the discussion contained in the rule itself.

Many questions remain open, and we expect these will be clarified in the near future:

When will STEM graduates be able to apply for the 17 month extension?
Where employers requested "consular notification" rather than change of status for F-1 students with "cap gap" problems, will USCIS allow petitions to be amended to request a change of status? (UPDATE- USCIS will allow amending petitions to request change of status.)
When will SEVIS be updated to reflect the new regulation?
How will those with automatic extensions be able to document the extension for purposes of renewing driver's licenses, or updating I-9 forms?