Alerts and Updates

Immigration: H-1B Cap Reached; OPT Status Extended for Certain F-1 Students

April 11, 2008

FY 2009 H-1B Cap Reached

The U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2008, that the number of H-1B visa petitions received had reached the congressionally mandated cap in the general category (65,000) and under the advanced degree exemption (20,000). The reaching of the H-1B cap effectively means that no more cap-subject H-1B petitions will be accepted for processing by the USCIS until April 1, 2009.

Implementing a computer-generated, random selection process this year, the USCIS will now randomly select from the pool of petitions received during the filing period that ended April 7, 2008. Random selection of the advanced-degree petition pool will occur first, and any advanced-degree petitions not selected will then be placed in the 65,000 general category pool. USCIS will return filing fees for all cap-subject cases not randomly selected, unless considered to be a duplicate.

Extension of Optional Practical Training Status for Certain F-1 Students

The U.S. Department of Homeland Security (DHS) announced a new rule on April 4, 2008, which allows for the extension of post-graduation optional practical training (OPT) employment authorization for many F-1 students. This new measure is designed to ameliorate the dilemma faced by many students whose OPT employment authorization expires prior to the beginning of the H-1B validity period on October 1 of the next fiscal year.

Under the new rule, F-1 status and OPT employment authorization are automatically extended for all F-1 students who are beneficiaries of approved or pending H-1B cap-subject petitions and change of status applications with a start date of October 1, 2008. Thus, the rule effectively extends the OPT employment authorization validity period until October 1, 2008. This automatic extension is available only for F-1 students selected for adjudication under the H-1B cap, however.

The language of the rule indicates that the foreign national's employer must have requested a change of status on the H-1B petition. It may nevertheless be feasible to request an amendment from consular processing to change of status in order to benefit from the new rule. USCIS is currently reviewing procedures to address this issue. Note that the rule stipulates that automatic extensions will be terminated immediately if the H-1B petition filed on the F-1 student's behalf is rejected, denied or revoked. Furthermore, the inference from the final rule (although not addressed directly) is that international travel prior to the approval of an H-1B change of status request will invalidate the change of status and thereby invalidate the automatic OPT extension.

The new rule also increases the maximum OPT validity period from 12 months to 29 months for F-1 students who have earned bachelor's, master's or doctoral degrees in a science, technology, engineering or math (STEM*) field in the United States. Eligibility for the increased validity period is contingent on students' having earned their degrees from one of the degree programs listed on the current STEM Designated Degree Program List, and the employer must be enrolled in the DHS' "E-Verify" program.

Finally, the new rule permits F-1 students to apply for OPT during the 60-day grace period after completing their studies. This is a change from the previous rule, which required F-1 students to apply for OPT before they completed their degree programs. The new rule also now limits the time that students may be unemployed during their OPT-students fall out of status after unemployment for an aggregate period of more than 90 days for the 12-month program and more than 120 days for the 29-month program.

*STEM fields include:

  • Actuarial Science
  • Computer Science (except data entry and microcomputer applications)
  • Engineering
  • Engineering Technologies
  • Biological and Biomedical Sciences
  • Mathematics and Statistics
  • Military Technologies
  • Physical Sciences
  • Medical Sciences (M.D., Ph.D.)

For Further Information

If you have any questions about this Alert or would like more information, please contact one of the attorneys in our Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.