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Thread: Important F-1 Student OPT New Rule

  1. #1
    USICE/SEVT has released over 30-page guide for DSO of the schools that give, albeit not binding and not a rule but a temporary guidance, most of the answers to the questions that puzzled the school DSOs, OPT students and their employers.

    H-1B Cap: The H-1B cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000.

    Many employers file H-1B petitions on behalf of F-1 academic students after their post-completion OPT expires. Under the previous regulation (and unchanged by this rule), an employer could not file, and USCIS could not approve, an H-1B petition submitted earlier than six months before the date of actual need for the beneficiary's services or training.

    As a result, the earliest date that an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start approved H-1B employment is October 1.

    Consequently, prior to effective date of this rule, F-1 students who were the beneficiaries of approved H-1B petitions, but whose periods of authorized stay (including authorized periods of post-completion OPT and their grace period) expired before October 1, had to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status.

    Cap gap: This Policy Guidance uses the term cap gap to refer to the period of time between the time a nonimmigrant's F-1 student status would ordinarily end and his or her H-1B status begins.

    Under the previous regulation, the cap gap occurred when an F-1 student was the beneficiary of a successful H-1B petition, but his or her F-1 status ended before his or her H-1B status began. The time between the end of the F-1 status and beginning of H-1B employment was referred to as the cap gap.

    The most common situation occurred when the student's OPT ended in the spring or early summer, and his or her F-1 status expired 60 days after that, leaving a gap of several months before the individual's H-1B status began on October 1.

    Under the previous regulation, DHS could remedy this problem by publishing a Federal Register notice allowing students to remain in status in order to span the cap gap. However, this remedy was not automatic and did not allow the student to continue OPT during the gap period. This rule automatically extends the student's F-1 status and work authorization.

    Cap gap extension: Under the new rule, the cap gap extension is a period in which an eligible F-1 student's status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student's post-completion OPT is also automatically extended.

    Cap gap OPT: A period of OPT that has been extended beyond the date on the F-1 student's employment authorization document during an authorized cap gap extension.

    http://www.greencardapply.com/news/n...ews08_0507.htm

  2. #2
    USICE/SEVT has released over 30-page guide for DSO of the schools that give, albeit not binding and not a rule but a temporary guidance, most of the answers to the questions that puzzled the school DSOs, OPT students and their employers.

    H-1B Cap: The H-1B cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000.

    Many employers file H-1B petitions on behalf of F-1 academic students after their post-completion OPT expires. Under the previous regulation (and unchanged by this rule), an employer could not file, and USCIS could not approve, an H-1B petition submitted earlier than six months before the date of actual need for the beneficiary's services or training.

    As a result, the earliest date that an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start approved H-1B employment is October 1.

    Consequently, prior to effective date of this rule, F-1 students who were the beneficiaries of approved H-1B petitions, but whose periods of authorized stay (including authorized periods of post-completion OPT and their grace period) expired before October 1, had to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status.

    Cap gap: This Policy Guidance uses the term cap gap to refer to the period of time between the time a nonimmigrant's F-1 student status would ordinarily end and his or her H-1B status begins.

    Under the previous regulation, the cap gap occurred when an F-1 student was the beneficiary of a successful H-1B petition, but his or her F-1 status ended before his or her H-1B status began. The time between the end of the F-1 status and beginning of H-1B employment was referred to as the cap gap.

    The most common situation occurred when the student's OPT ended in the spring or early summer, and his or her F-1 status expired 60 days after that, leaving a gap of several months before the individual's H-1B status began on October 1.

    Under the previous regulation, DHS could remedy this problem by publishing a Federal Register notice allowing students to remain in status in order to span the cap gap. However, this remedy was not automatic and did not allow the student to continue OPT during the gap period. This rule automatically extends the student's F-1 status and work authorization.

    Cap gap extension: Under the new rule, the cap gap extension is a period in which an eligible F-1 student's status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student's post-completion OPT is also automatically extended.

    Cap gap OPT: A period of OPT that has been extended beyond the date on the F-1 student's employment authorization document during an authorized cap gap extension.

    http://www.greencardapply.com/news/n...ews08_0507.htm

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