H-1B Cap-Subject Petitions Must Reach USCIS on April 1

April 1 is the first day U.S. Citizenship and Immigration Services will accept H-1B cap-subject petitions for next year's allotment of visas for foreign national professionals in specialty occupations. To have a chance for selection, H-1B cap-subject petitions should be mailed to USCIS on Tuesday, March 31—via overnight delivery.

A limited number of H-1B visas are available each year. Under the regular H-1B cap, 65,000 of these visas are currently available. An additional 20,000 are available under an exemption for foreign nationals (usually F-1 students) who have graduated from a U.S. college or university with a master's degree or higher.

Cap-subject H-1B visas become available each year on October 1—and filings with USCIS can be made no sooner than six months in advance. April 1 is the first day filings will be accepted.

Filings Will Be Subject to a Lottery

It is possible that the allotment of regular and master's cap cases will be exhausted on the first day of filing. Filed cases will then be subject to a computer-generated random lottery by USCIS. Under the H-1B lottery system conducted last year, random lotteries for both the master's cap and regular cap were conducted on April 12, 2008. After these lotteries were conducted, USCIS began notifying applicants who were selected in the lottery process. USCIS is expected to follow similar procedures this year.

As it did last year, USCIS will likely implement premium processing after the random lottery is conducted. If a case is not chosen, USCIS will return the petition along with all applicable filing fees, including the $1,000 premium processing filing fee.

Cap Exceptions Include Petitions for Employment Change, Extension Petitions

It is important to note that not all H-1B cases are subject to the cap. People, and not petitions, are to be counted under the H-1B cap. Under the rule, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap.

Cases subject to the H-1B cap include:

• Petitions for new H-1B employment of foreign national who is outside of the U.S.
• Petitions for new H-1B employment requesting a change of status from F-1 to H-1B
• Petitions to change H-1B employment from a cap-exempt entity (such as a university) to a cap-subject entity (such as a private employer)

Cases NOT subject to the H-1B cap include:

• Petitions to change employers for a foreign national already in H-1B status with a cap-subject entity
• Petitions to extend or amend H-1B status
• Petitions for H-1B concurrent employment
• Petitions filed by institutions of higher education and non-profit organizations that are related to institutions of higher education
• Petitions for J-1 physicians who receive a waiver of the two-year home residence requirement
• Petitions for Chilean, Singaporean and Australian citizens pursuant to special H-1B1 and E-3 procedures

New Work Authorization Options Available for F-1 Students

If a case is not selected under this year's random H-1B visa lottery, companies and foreign nationals will need to look at alternatives to bridge the gap in work authorization until October 2010. After last year's H-1B filings, USCIS implemented a rule to extend certain work authorization benefits for applicable F-1 students and employers. These options will again be available this year for such foreign students and their employers.

17-Month Extension of F-1 OPT for F-1 Students with STEM Degree

Post-completion Optional Practical Training (F-1 OPT) allows an F-1 foreign student to work full-time off campus for up to one year after completing his studies for "training directly related to the student's major area of study." To work pursuant to F-1 OPT, the student must apply for and receive approval from USCIS. The student must have an Employment Authorization Card (EAC) in hand to commence employment. Allowable under the rules is a 17-month extension of F-1 OPT for students with a science, technology, engineering or mathematics (STEM) degree.

To apply for the 17-month extension for a maximum of 29 months of OPT, the following requirements must be satisfied:

• F-1 student must apply for the extension while in a valid period of post-completion OPT
• F-1 student has successfully completed a degree included in the DHS STEM designated degree program list from a college or university certified by the U.S. Immigration and Customs Enforcement student and Exchange Visitor Program
• F-1 student will work for a U.S. employer in a job directly related to the student's major area of study
• F-1 student will work for, or accept employment with, an employer enrolled in the USCIS E-Verify program
• F-1 student has properly maintained F-1 status

Under the rule, the student must apply for extension prior to expiration of his current EAC. If the EAC expires prior to a decision on the application for the 17-month extension by USCIS, the student's work authorization end date is automatically extended for a period up to 180 days.

As part of the application extension process, the designated school official for the F-1 student's college or university will authorize the 17-month extension and certify the STEM degree. Form I-765 and supporting documents are then filed with USCIS for the STEM OPT extension. Form I-765 and instructions are available on the USCIS Web site.

Form I-765 was revised to require the F-1 student applying for a STEM OPT extension to include information in the extension application about the STEM degree conferred major field of study and the employer's E-Verify company or client identification number.

For the current list of STEM degree fields, visit the Student/Exchange Visitors page on the U.S. Immigration and Customs Web site or click here.

No Further Expansion of STEM Fields

Although requests have been made to expand the STEM degree list to include additional fields and majors in science, technology, engineering and mathematics, no recent additions have been made. It is unclear when or if USCIS will include additional STEM fields of study to allow more F-1 students to benefit from this type of extension.

It may be possible, however, for a student's field of study to be re-designated as a STEM field. In order to do so, it must be substantiated that the student earned a degree in a STEM field—but that the initial designation on the student's paperwork did not reflect the specific classification of instructional programs code required for the STEM extension.

For additional information about the F-1 OPT STEM extension, visit the Student/Exchange Visitors page on the U.S. Immigration and Customs Web site or click here.

Cap-Gap Relief for F-1 Students with Pending H-1B Petitions

Last year, USCIS implemented cap-gap F-1 status and work authorization relief for F-1 students with H-1B petitions selected in the lottery. This rule provided specific relief to those F-1 students whose F-1 OPT work authorization would expire after April 1 but prior to the October 1 effective date of the H-1B that had been selected in the lottery and ultimately approved by USCIS.

USCIS outlined the following time periods for cap-gap work authorization and status:

• If the H-1B petition naming the student was properly filed, the student who was in an authorized period of F-1 OPT, had their OPT extended until June 2, 2008 (the date that was announced last year by USCIS as the likely date for the end of the receipting period). The F-1 status was then extended to August 2, 2008.
• If the H-1B petition was selected for receipting, the OPT was then extended until September 30.
• A student whose H-1B was withdrawn or denied will have his or her OPT extension terminated 10 days after the date of the withdrawal or denial.

The rules are clear that an F-1 student must be in a proper period of OPT to benefit from the cap-gap work authorization extension. Although the information from USCIS provides for 2008 dates, this rule will apply to this year's April 1 H-1B filings and similar time periods for extended work authorization and F-1 status will also be applicable.

For additional information about cap-gap relief for F-1 students, visit the Student/Exchange Visitors page on the U.S. Immigration and Customs Web site or click here.