Alerts and Updates

Immigration: Cap Gap Extension

May 7, 2008

The U.S. Citizenship and Immigration Services (USCIS) announced an Interim Final Rule on April 4, 2008, which provides relief for certain students whose practical training (work authorization) will expire this summer. The F-1 status for students is automatically extended for students who are the beneficiaries of specified H-1B petitions. To obtain this automatic extension, a student must be the beneficiary of an H-1B petition filed with an October 1, 2008, start date and must have requested a change of status.

If the H-1B petition filed on behalf of the student is chosen in the random selection process, the student may remain in the United States, and if they have been granted post-completion optional practical training (OPT), they may continue working until October 1, 2008. For F-1 student beneficiaries of petitions that the USCIS subsequently rejects, denies or revokes, or for those who violate their status, the automatic extension terminates at the time of such an action.

Since this rule was published after the filing period for new H-1B petitions for fiscal year 2009 had closed, many petitioners of F-1 students requested consular notification on the I-129 form, based on the assumption that the students would have been required to leave the U.S. in order to obtain an H-1B visa at a consular office abroad. In late April, the USCIS announced that it would allow petitioners of these F-1 students to now request a change of status to H-1B in lieu of consular notification on behalf of the beneficiaries. Requests for change of status in lieu of consular notification must be received by USCIS within thirty (30) days of the issuance of a receipt notice.

If you have requested consular notification on behalf of a student who qualifies under this extension provision, and you would now like to request a change of status on their behalf, you should contact your legal counsel immediately so that they can submit the request to the USCIS. Note that this request can be made to USCIS only after receiving the H-1B petition receipt notice from the USCIS.

[Note: The USCIS provided additional confirmation, as of 5/6/08, that all fee receipts should be mailed by June 2, 2008, and that non-selected, or rejected, cases would be returned beginning on June 5, 2008.]

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.