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Learn How A New Rule Allows U.S. Employers To Recruit Highly Desirable F-1 Students

United States Citizenship and Immigration Services (USCIS) announced a new rule for F-1 students that hopefully will eliminate the F-1/H-1B “Cap Gap”.  The cap is the congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year.  The “Cap-Gap” occurs when an F-1 student’s status and work authorization expire in the current fiscal year before they can start their approved H-1B employment in the next fiscal year beginning on October 1. 

An F-1 student in a cap-gap situation would, in most cases, have to leave the United States and return at the time his or her H-1B status becomes effective at the beginning of the next fiscal year.   Depending on when the student’s status expires, such circumstances could require the student to remain outside the United States for several months. . . . For No Good Reason! 

Under this new rule F-1 academic students on post-completion Optical Practical Training (OPT) maintain valid F-1 status until the expiration of their OPT.  Once that OPT has ended, they are authorized to remain in the United States for up to 60 days to prepare for departure.  However, under the new rule the F-1 student’s status is automatically extended when the student is the beneficiary of an H-1B petition for the next fiscal year (with an October 1 employment start date) filed on his or her behalf during the period in which H-1B petitions are accepted for that fiscal year.  If the H-1B petition filed on behalf of the student is selected,  the student may remain in the United States and, if on post-completion OPT, continue working until the October 1 start date indicated on the approved H-1B petition. 

One of the major benefits of this new rule is to give U.S. employers to two chances to recruit these highly desirable graduates through the H-1B process, as the extension is long enough to allow for H-1B petitions to be filed in two successive fiscal years. 

But what student’s are eligible? 

Under a new rule, F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may be eligible for OPT to receive a 17-month extension of post-completion OPT. 

OPT is defined as temporary employment that is directly related to an F-1 student’s major area of study.  Under the old rule an F-1 student could be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies. 

To be eligible for the 17-month OPT extension, a student must have received a degree included in the STEM Designated Degree Program List. This list includes the following courses of study: 

Computer Science Applications
Actuarial Science
Engineering Technologies
Science Technologies
Biological and Biomedical Sciences
Mathematics and Statistics
Military Technologies
Physical Sciences
Medical Scientist

 In addition to the foregoing: (1) the student must have a bachelor’s, master’s, or doctorate degree included in the STEM Designated Degree Program List, (2) must currently be in an approved post-completion OPT period based on a designated STEM degree, (3) the student’s employer must be enrolled in E-Verify, and (4) the student must apply on time (i.e., before the current post-completion OPT expires).

 Under this new rule F-1 students seeking initial post-completion OPT are allowed to apply during their 60-day departure preparation periods in the same way that they are allowed to apply for a change to H-1B status during their departure preparation periods, or at anytime prior to the expiration date of their current OPT period.