USCIS has provided F-1 students and their employers with a FAQ discussing extensions of employment authorization for F-1 students caught by the “cap-gap.” F-1 students commonly obtain Optional Practical Training (OPT) for 12 months following completion of studies. As most students graduate in May, OPT commonly runs from May to May or June to June. Employers that wish to continue the employment of F-1 OPT students typically seek to change an F-1’s student visa status to H-1B. Because of the Congressionally-mandated annual cap on new H-1Bs and the timing of the annual allocation, the earliest date the F-1 student can commence H-1B employment is typically the following October 1. As a result, prior to the 2008 changes noted below, F-1 students who were beneficiaries of approved H-1B petitions, but whose employment authorization and period of authorized stay expired before October 1, were commonly forced to depart the United States and apply for an H-1B visa at a consular post abroad before “activating” the H-1B status and resuming employment.
In 2008, a new regulation was implemented that extended F-1 students’ OPT employment authorization in two situations:
- During the “cap-gap” period, an F-1 student’s status and employment authorization can be extended automatically upon filing of an H-1B petition.
- Certain F-1 students may seek an extension of the OPT period from 12 to 29 months. The extension is available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.
Students are cautioned to avoid international travel during the “cap-gap” period and also to be cautious and plan carefully for international travel during any STEM extension period as such travel can be complicated. Consult with your Designated School Official or contact your Ogletree Deakins representative for more information.
