On April 4, the Department of Homeland Security (DHS) announced a new regulation that (1) addresses the “cap-gap” problem by allowing F-1 students with Optional Practical Training (OPT) who are also beneficiaries of a cap-subject H-1B petition accepted for processing (i.e., a lottery winner) to remain in the United States and continue employment pending approval of the H-1B petition and (2) allows for a 17-month extension of OPT (to a full 29 months) for Science, Technology, Engineering and Math (STEM) graduates provided certain key criteria are met, including employer participation in E-Verify. Since our initial April 7 Immigration eAuthority on the topic was issued, the STEM list has been posted on the U.S. Immigration and Customs Enforcement’s website. The USCIS also updated the Form I-765 Application for Employment Authorization to account for STEM OPT extension requests. On April 18, USCIS posted an update on its website announcing that it will allow F-1 students who may be eligible to benefit from the “cap-gap” rule to request a “change of status” via email. This will allow F-1 students to avoid a trip outside the U.S. to apply for a visa and return to the U.S. to be granted H-1B status on October 1.

Note: This article was published in the May 2008 issue of the Immigration eAuthority.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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