On Mar 31 2009 by William A. Stock

Guidance for Students transitioning to H status

Immigration and Customs Enforcement (ICE) has a helpful new fact sheet for F-1 nonimmigrant students whose Optional Practical Training will expire before October 1, 2009, and employers filing H-1B petitions today on behalf of those students.  The guidance explains the “cap gap” in employment authorization as well as how to get the benefit of the rule.

In summary, an F-1 student with OPT work authorization expiring between April 1, 2009 and October 1, 2009, is authorized to work (but not travel) for so long as an H-1B petition seeking a change of status on his or her behalf is pending.  If the H-1B petition is rejected because it was not selected for the lottery, work authorization ends.  If the petition does not request a change of status, there is no “cap gap” protection.

Eligible students must contact their school to have an amended I-20 issued, but do not need to get a separate employment authorization document from USCIS.