Tag Archives: student visas

Foreign Students & H-1B

According to the Institute of International Education, some 886,052 foreign students were enrolled in U.S. schools during the 2013-14 school year — more than the number of foreign students enrolled in any other country in the world. In addition to being a pool of potential innovators, scientists, businessmen, etc., foreign students are of great economic importance to the U.S. In 2013 alone, foreign students contributed some $27 billion to the U.S. economy. However, inflexible and outdated laws may be prompting many of these students to leave the U.S. soon after graduation and take their valuable skills elsewhere.

Currently, student (F-1) visas allow foreign students to remain in the U.S. for just 12 months after graduation. For students who have studied in STEM (science, technology, engineering, math) fields this is extended to a total of 29 months after graduation; this may be why a disproportionately high amount of foreign students study in STEM and business compared to U.S. students overall. Once this period is over, students must leave the U.S. within 60 days. Many students apply for H-1B (temporary work visas), but the chances of obtaining an H-1B visa is quite low. Since 2005, the number of H-1B visas available has been capped at 85,000 per year, which is woefully inadequate considering that some 233,000 H-1B applications were submitted this year.

Recently, executive actions by President Obama have proposed to make some important changes. This includes allowing more degrees into the STEM category (which would allow more foreign students to remain in the U.S. for a longer period of time after graduation), extending the maximum time allowed on Optional Practical Training (OPT) programs that many students pursue after graduation, allowing individuals on H-1B visas to change jobs or get promoted with fewer restrictions, and providing more options for outstanding foreign investors, researchers, and founders of businesses to establish themselves in the United States. One change proposed by President Obama has already been implemented, namely the new regulations (effective since May 26 of this year) allowing spouses of H-1B visas to apply for employment authorization. These are positive steps in the right direction, but there remains much to be done in order to ensure that skilled and talented foreign students are given effective incentives and opportunities to remain in the U.S. after completing their education.

“Cap-Gap” Relief

Is your OPT expiring before your change of status to H-1B becomes effective on October 1 of the following fiscal year?  Will you fall out of status?  Is there an extension you can file?

Earlier an F-1 student’s OPT expiring before October 1 required the student to leave the US and return at the time his or her H-1B status became effective at the beginning of the next fiscal year on October 1. This created a hardship for a number of students and became a disincentive for U.S. employers to petition for F-1 students whose OPT’s expired during this “cap gap.”

On April 2008, Department of Homeland Security issued a regulation, commonly known as “cap-gap” relief that bridges the “gap” between the end of the OPT status until October 1 of the next fiscal year.  The cap-gap relief automatically extends the F-1 student’s status and the student’s OPT employment authorization to October 1 as long as the F-1 student’s EAD was valid when the H-1B change of status petition was filed.

Cap-gap relief prevents F-1 students from being unemployed during the cap-gap period and falling out of status.  However if the student does not have a valid EAD than the employment is not authorized during the cap-gap period and cap-gap relief cannot be utilized.

Provided that the F-1 student’s EAD is valid at time of H-1B filing, the F-1 student is eligible for cap-gap relief if the following three requirements are met:

  • The H-1B petition must have been timely filed with a request for change of status
  • The H-1B petition must request a start date of October 1 of the following fiscal year, and
  • The beneficiary did not violate the terms and conditions of his or her nonimmigrant status


  • How do I apply for the cap-gap relief?

The F-1 student should communicate with his or her school official (DSO) to obtain a new I-20 reflecting the extension of valid immigration status.  This extension also applies to any F-2 dependents of the F-1 student.

If processing times for H-1B petitions is very slow, USCIS may prioritize the adjudication of the H-1B change of status cases for F-1 cap-gap students because after September 30 they will be prohibited from continuing employment.

  • My H-1B petition was denied.  Can I still work on the cap-gap relief?

The cap-gap relief is immediately terminated upon rejection, denial, revocation, or withdrawal of the H-1B petition.  In this scenario the F-1 student enters the 60-day grace period.

  • Can I apply for a STEM Extension during cap-gap relief?

Yes, during the cap-gap period the F-1 student may apply for the 17-month STEM extension if eligible.  However, if the H-1B is withdrawn, revoked, or denied and the student has entered the 60-day grace period, he or she will no longer be eligible to apply for a STEM extension.

  • My H-1B petition was filed during the 60-day grace period.  Can I still apply for cap-gap relief?

No because F-1 student’s EAD must be valid at the time the H-1B is filed.  Cap-gap relief does not serve to retroactively grant employment authorization.

Please contact HBM Law Offices, LLC for an examination of your particular facts.