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 […]
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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 […]
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What You Need to Know About the New STEM OPT Regulations

As of May 10, 2016, all new STEM applications and all currently pending petitions will be processed under the new STEM OPT regulations, which extend STEM OPT to 24 months and include new employer requirements. Employers will be required to demonstrate sufficient resources to train employees and show they are not replacing U.S. workers. Eligible employment will require at least 20 hours per week in training, an outlined training program directly related to the qualifying degree, and compensation that is on par with similarly situated U.S. workers. The new regulations will not require prevailing wage, but employers will still need to document how the wage was determined. Structuring the Training Program – An Outline for Form I-983: I. Student’s Role: • Describe specific tasks, including skills and knowledge, related to the coursework • Consider how tasks build on knowledge through degree • Describe timeframe to master skills and progression of acquisition • Describe different phases of the training II. Goals and Objectives: • Name specific objectives in relation to the student’s specific skills • Describe projects where student will use these skills III. Employer Oversight: • Student coordinating a project in conjunction with supervisor • Frequency of student-supervisor meetings • […]
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DHS proposes changes to OPT period

Foreign students and graduates, take note: you may be able to work in the U.S. for longer. The Department of Homeland Security (DHS) is aiming to improve the optional practical training program (OPT), which allows foreign students or graduates to temporarily work in the U.S. This program gives them the chance to further their education by gaining experience in their field of study. OPT is available before and after completion of an academic program to some students holding an F-1 Visa. As it stands, foreign students and graduates can work up to 29 months in the U.S. if they receive certain STEM degrees (science, technology, engineering and mathematics).  On October 16, the DHS published proposed changes to OPT, including an extension of the time limit from 29 to 36 months. DHS explained that this extension would increase the academic benefits of the program and have advantages for American universities and employers as well, attracting international students in STEM fields and increasing an employer’s ability to rely on these students’ skills. Other proposed changes include adding wage protections for students and workers, and “more oversight” of the OPT program extensions. Employers would be required to provide formal training and mentoring plans. […]
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Recent OPT Ruling May Help Speed Up New Regulations from the Obama Administration

On Wednesday, August 12, 2015, U.S. District Judge Ellen Segal Huvelle vacated a 2008 ruling that extended the Optional Practical Training period for foreign students with STEM degrees by 17 months for an overall work period of 29 months. In the wake of this new ruling, many believe the Obama administration is likely to act on new regulations for the OPT program, which has become a major fallback for H-1B employers. Optional Practical Training allows foreign students on F-1 visas to work while studying or after they’ve graduated. The program is a key way for skilled foreign nationals to be employed in the U.S. in the face of uncertainty created by the H-1B cap. The recent OPT ruling has put many large tech companies on edge. However, after acknowledging that vacating the rule could harm the tech sector and force many foreign students to leave the U.S., Judge Huvelle has stayed the regulation until February 12, 2016 in order to give the Department of Homeland Security time to put the new rule through the proper comment process. Still, the change in date brings little relief. While many are hopeful that new OPT regulations will happen by early spring, others remain […]
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