H-1B Challenges and Relief for Foreign Students
The annual quota for H-1B visas was exhausted on the first date of filing again this year requiring United States Citizenship and Immigration Services (USCIS) to conduct a lottery to select petitions for processing. As a result of the insufficient number of H-1B visas available, U.S. employers who identify highly-qualified and capable foreign students face challenges in employing them beyond Optional Practical Training (OPT). But now, under a recently announced new USCIS rule, certain eligible students may have two possible opportunities for relief.
Cap Gap Extensions
Even before students had to contend with the H-1B lottery, the "cap gap" was still a challenge for foreign students applying for H-1B visas. The cap gap occurs when a student's OPT expires before his or her approved H-1B employment begins on October 1. Under the new rule, if an H-1B petition was timely filed on a foreign student's behalf, and that student's petition is selected in the H-1B lottery and subsequently approved, his or her OPT is automatically extended. The foreign student can remain in the U.S. and continue working without any additional filing pursuant to his or her OPT employment authorization until the student's H-1B status takes effect on October 1, 2008.
More than 165,000 H-1B petitions were filed last month, meaning that more than half were not selected in the lottery. Under the new rule, foreign students not selected could be eligible for a one-time 17-month extension of their OPT. Unlike the Cap Gap Extension which occurs automatically for students whose petitions are selected and approved, students eligible for this alternative relief must apply directly to USCIS for this extension before their current OPT expires. Students are only eligible for this extension if their degree is listed on the STEM (Science, Technology, Engineering, or Math) Designated Degree Program List and the employer is enrolled in E-Verify. E-Verify is a web-based employment verification system operated by the Department of Homeland Security and use of the system requires several important rules.
Please contact a member of Ice Miller's immigration group to discuss employing foreign students, applying for H-1B visas, and/or the requirements and implications of enrolling in E-Verify.
This publication is intended for general information
purposes only and does not and is not intended to constitute legal
advice. The reader must consult with legal counsel to determine how laws
or decisions discussed herein apply to the reader's specific circumstances.