In April, the U.S. Citizenship and Immigration Services (“USCIS”) reminded employers that some foreign national employees may qualify for Cap Gap relief. H-1B Cap Gap Relief pertains to F-1 students with pending or approved H-1B petitions, including a request for a change of status from F-1 to H-1B, with an employment start date of October 1, 2010, under the Fiscal Year (FY) 2011 H-1B cap. Current regulations allow F-1 students with pending H-1B petitions to remain in F-1 status during the time frame when a F-1 student’s work authorization would have otherwise expired, and up to the start of their approved H-1B employment beginning on October 1, 2010. F-1 students with Optional Practical Training (“OPT”) that expired on or after April 1, 2010, have employment authorization automatically extended until October 1, 2010, and an approval or denial of the H-1B petition.

F-1 students in this situation should contact their university’s Designated School Official (“DSO”) to have an updated Form I-20 issued to reflect the cap gap relief, and continued employment eligibility to submit to employers. The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student must show proof of the H-1B petition filing to the DSO.

F-1 students may not travel internationally during a cap gap extension period and return to the U.S. in valid F-1 status. Instead, the student will need to apply for an H-1B visa at a consular post abroad prior to returning to the U.S. Since the H-1B petition will most likely have an October 1, 2010, start date, the student should be prepared to adjust travel plans accordingly. In this situation, entering the U.S. after applying for a H-1B visa stamp could occur no earlier than September 22, 2010.

If a student’s change of status petition to H-1B is denied or not selected for approval, the student will have the standard sixty (60) day grace period from the date of the rejection notice or the end date of OPT, whichever is later, to depart the U.S.

H-1B Cap Gap relief should not be confused with a STEM OPT extension. F-1 students who receive degrees in designated STEM majors in science, technology, engineering and mathematics included on the STEM Designated Degree Program List, who are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT related to such a degree, may apply for a seventeen (17) month extension of such authorization. Additional information regarding STEM OPT, and the approved STEM Designated Degree Program List can be found at www.ice.gov/sevis. Additionally, USCIS has confirmed that if a H- 1B petition is denied or withdrawn, an F-1 student may still apply for STEM OPT within ten (10) days of the withdrawal or denial, if eligible.

For additional information regarding the H-1B cap, or any other immigration related issue, please contact Jacqueline Lentini McCullough at +630-262-1435, jacki@lentinivisas.com .