Understanding OPT Cap-Gap

The H-1B visa allows employers to temporarily employ a foreign national, who possesses at least a bachelor’s degree, in a specialty occupation. The H-1B employment period generally begins on October 1, the start of the federal government’s fiscal year.  There are special rules that act to automatically extend the US employment eligibility of qualified F-1 foreign student visa holders beyond the period initially authorized. The rule that relates to F-1 visa holders seeking to change to H-1B work visa status is referred to as “cap-gap.” This is because it is intended to fill the gap between the date the optional practical training (OPT) period would otherwise expire and the date that the new H-1B employment authorization starts. The 60-day grace period may not be enough to cover the “cap-gap” period until H-1B status begins. However, USCIS offers an OPT cap-gap extension if three conditions are met: An employer timely files a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting a change of the student’s status to H-1B. (Exception: Petitions requesting consular processing which do not qualify);  The H-1B petition asks for an October 1 start date; and  The student’s status, including any applicable grace period, ends between April and September 30. Situations […]
Continue Reading

F-1 ‘Cap-Gap’ Status and Work Authorization Only Valid Through Sept. 30, 2018

F-1 students who have an H-1B petition that remains pending after October 1, 2018, risk accruing unlawful presence if they continue to work on or after October 1, 2018 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through September 30, 2018. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS has not been able to adjudicate H-1B change of status petitions for all F-1 students by October 1, 2018.  USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1, to have his or her F-1 status and any current employment authorization extended through September 30. This is referred to as “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. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30, with October 1 being the requested start date of their H-1B employment, unless otherwise terminated or the […]
Continue Reading

USCIS Explains that STEM OPT Offsite Employment is Allowed

On August 17, 2018, U.S. Citizenship and Immigration Services (USCIS) updated its website to reflect changes to the Optional Practical Training Extension for STEM Students (STEM OPT). Importantly, the Department of Homeland Security (DHS) clarified that participants of this program can participate in training experiences that take place at offsite locations. Training experiences that are at locations other than an employer’s principal place of business are permissible so long as all training obligations are met, such as demonstrating that the employer maintains a bona fide employer-employee relationship with the student.  DHS will review and confirm whether there is a bona-fide relationship between the parties signing the Training Plan on a case-by-case basis. DHS will also verify that the employer that signs the Training Plan is the same entity that employs and provides training experience.  USCIS also updated reporting procedures regarding STEM OPT. These reporting changes have been made to ensure that DHS can properly oversee the program. Students and employers must submit a modified Form I-983 to the Designated School Official (DSO) reporting any material changes at the earliest opportunity. In addition, employers must report a student’s termination or departure to the DSO within five business days. Students, on the […]
Continue Reading

USCIS Taking Steps to Improve Integrity of F-1 and OPT Programs

USCIS aims to improve the integrity of the F-1 and Optional Practical Training (OPT) programs by implementing an updated process that ensures consistency between Student and Exchange Visitor Program (SEVP) and USCIS systems and informs students of the potential consequences of working with a terminated employment authorization document (EAD).  Under current regulations, F-1 students in the United States on OPT face automatic termination of their OPT if they transfer to another school or begin studying at another educational level. In addition, a student’s corresponding EAD will be automatically terminated as well. While transfer to another school or commencement of study at another educational level automatically terminates OPT authorization, F-1 students who continue to comply with all requirements to maintain their status will not otherwise be affected. One such requirement is not working with a terminated EAD, since a terminated EAD results in a lack of authorization to work in the United States. Failing to comply with this and other requirements carries significant penalties such as removal or bars on reentry to the U.S. Under the Immigration and Nationality Act, there is an additional set of penalties for those remaining in the U.S. in violation of lawful nonimmigrant status who accrue […]
Continue Reading

Frequently Asked Questions: F-1 Status

The F-1 visa enables an individual to enter the U.S. as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. The student must be enrolled in a program that culminates in a degree, diploma or certificate and the school must be authorized by the U.S. government to accept international students. Q: Can I work on-campus while in F-1 status? A: F-1 students are permitted to work on campus. Approval by a Designated School Official (DSO) or USCIS is NOT required, and students may work up to 20 hours per week while school is in session and full-time during official school vacation periods. On-campus employment includes work performed on school premises or at an off-campus location which is educationally affiliated with the school. Q: Can I work off-campus while in F-1 status? A: Yes, but only after completing an entire academic year of full-time study. After the first year, F-1 students may engage in three types of off-campus employment: (1) Curricular Practical Training (CPT); Optional Practical Training (OPT); or Science, Technology, Engineering and Mathematics (STEM) Optional Practical Training Extension (OPT). Q: What is the difference […]
Continue Reading

Frequently Asked Questions: CPT Employment

The F-1 visa enables an individual to enter the U.S. as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. The student must be enrolled in a program that culminates in a degree, diploma or certificate and the school must be authorized by the U.S. government to accept international students. Q: Can I work on-campus while in F-1 status? A: F-1 students are permitted to work on campus. Approval by a Designated School Official (DSO) or USCIS is NOT required, and students may work up to 20 hours per week while school is in session and full-time during official school vacation periods. On-campus employment includes work performed on school premises or at an off-campus location which is educationally affiliated with the school. Q: Can I work off-campus while in F-1 status? A: Yes, but only after completing an entire academic year of full-time study. After the first year, F-1 students may engage in three types of off-campus employment: (1) Curricular Practical Training (CPT); Optional Practical Training (OPT); or Science, Technology, Engineering and Mathematics (STEM) Optional Practical Training Extension (OPT). Q: What is Curricular Practical […]
Continue Reading

Back to school…F-1 Fact or Fiction

As the new academic school years begins, Berardi Immigration Law reviews the basic elements of the F-1 nonimmigrant status. Statement #1: I’m a foreign national, I can apply to any university in the U.S. and obtain F-1 status. FICTION. In order to qualify for F-1 status you need to enter as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. You must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate and your school must be authorized by the U.S. government to accept international students.  Some “schools” will try and lure a foreign national with the promises of online course-work easily accessible from any geographic location, employment authorization from the beginning, and only offering evening/weekend classes.  These “schools” should be avoided as they typically do not qualify according to the immigration regulations. Statement #2: I just received my F-1 status, now I immediately can receive employment authorization. FICTION.  A foreign nation in F-1 status can be authorized for Curricular Practice Training (CPT) only after a full academic year of full-time study. Statement #3: If I take a […]
Continue Reading