JUNE 2012
Khaas Baat : A Publication for Indian Americans in Florida


Guidance for Certain Foreign Students (F-1) Now Applying for H-1Bs

Dilip Patel


Now that the filing period for new H-1B specialty occupation visas for work commencing Oct. 1, 2012 has begun, we provide below a general overview of the special rules that apply to certain F-1 foreign students who are applying for H-1Bs.

Under the immigration regulations, certain students with pending or approved H-1B petitions are permitted to remain in the United States in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire. Under these special rules, the student’s F-1 status is extended and he or she can remain in the United States until the start date of the new, approved H-1B employment period. This special extension is called the “cap-gap” extension because it fills the “gap” between the normal end of F-1 status and the beginning of H-1B status. The gap often occurs because most students graduate or complete their post-completion Optional Practical Training (OPT) in May or June and H-1B visas, normally exhausted months earlier, are not available again until Oct. 1.

To be eligible for the cap-gap extension, an F-1 student must have an H-1B petition filed on his or her behalf and that petition must be filed while the student’s authorized F-1 admission is still in effect. In other words, the petition must be timely filed during the academic course of study, the authorized period of post-completion OPT, or during the 60-day grace period. Once a timely filed request to change status to H-1B on Oct. 1 has been made, the automatic cap-gap extension begins and continues until the H-1B petition adjudication process has been completed.

If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 (of that year). If, however, USCIS denies, rejects, or revokes the H-1B petition, the automatic cap-gap extension of status expires, and the student is granted (from the date of the notification of the denial, rejection, or revocation of the petition) the standard 60-day grace period before he or she is required to depart the United States. In some instances, however, where there has been a denial, the student is required to leave the United States immediately.

Other rules apply to F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees as well as instances where the F-1 student is terminated or laid off during the pendency of their H-1B petition.

The rules regarding work authorization and status for cap-gap foreign students are complicated and specific. For example, an F-1 student who is already in his or her 60-day grace period when the H-1B petition is filed is unable to receive employment authorization even though F-1 status is automatically extended. Also, students whose status is governed by the cap-gap extension cannot re-enter the United States in F-1 status during this period if they elect to travel. Instead, they are required to apply for an H-1B visa at a consular post abroad prior to returning. And, the earliest they can re-enter the U.S. is 10 days prior to Oct. 1.

Student are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the petition processing, with their Designated School Official (DSO) to ensure their status is properly extended on their Form I-20, and with their immigration attorney.

USCIS Issues Proposal on Stateside Waiver Process for ‘Unlawful Presence’
In early April, USCIS issued a much-awaited proposal that would allow spouses and children of U.S. citizens who are in the United States but need a waiver of ”unlawful presence” to get a green card to apply for that waiver while remaining in the United States. Interested individuals have until June 2 to submit formal comments to the USCIS on the proposed rule.

As previously described, the proposal would permit eligible spouses and children of U.S. citizens to apply for a provisional waiver before leaving the United States, even though they would still need to show that a lengthy bar from the United States would cause their U.S. citizen spouse or parent “extreme hardship.” If the waiver is approved, they will have to depart the United States to undergo visa processing and an interview at a U.S. consulate abroad.

Because the proposed change is narrowly construed, it is limited, and would not apply to family members of lawful permanent resident petitioners or the adult children of U.S. citizens. It is unlikely that USCIS will extend this benefit to those excluded, but now is the time for interested parties to weigh in.

After the formal notice and comment period, the agency must issue a final or interim rule before the new procedures can go into effect.

Dilip Patel of Shutts & Bowen LLP, a Florida Bar board certified expert on immigration law, can be reached at (813) 855-0066 or e-mail dpatel@shutts.com


Listen up, all residents of Citrus, Charlotte, Desoto, Hardee, Hernando, Hillsborough, Lee, Manatee, Pasco, Pinellas, Polk and Sarasota counties. U.S. Citizenship and Immigration Services (USCIS) on May 23 celebrated the official opening of its newest immigration field office in Tampa, which replaces the previous location on West Cypress Street. USCIS Tampa District Director Ruth Dorochoff was joined by U.S. Rep. Kathy Castor (11th District) for the ribbon-cutting ceremony.

The new office, at 5629 Hoover Blvd., will serve residents all 12 counties mentioned above. It occupies about 37,000 square feet of space and offers the full range of immigration services. The office consists of a spacious waiting room, an Application Support Center (which offers fingerprinting and photographic services as part of the application process), a naturalization ceremony room and interview rooms. The Tampa office is expected to serve about 300 people each business day. Office hours are 7:30 a.m. to 4 p.m.

For more information on USCIS and its programs, visit www.uscis.gov

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