June 21, 2004

Bridge for F Students Applying for H-1B status for October 1, 2004 Start Date

On June 18, 2004, the Department of Homeland Security sent to the Office of Management and Budget a draft notice titled "Supplemental Information Regarding the H-1B Numerical Limitation for FY 2004 Affecting F Nonimmigrants." This notice would permit F students who are in the U.S. for duration of status (D/S) and are seeking to change their status to an H-1B nonimmigrant worker to be regarded as maintaining nonimmigrant status until the new H-1B numbers are available beginning October 1, 2004.

This provision will help in resolving a problem faced by many students this year in light of the lowered number of H-1B visas available. For example, a recent graduate, "Maria," is in the U.S. as a student in F status, and her optional practical training is ending on June 30, 2004. Without this regulation her options are very limited and will all likely lead to her having to leave the U.S. (after using any available grace periods), apply for an H-1B visa at the U.S. consulate abroad and return on or after October 1, 2004 in H status. Without the gap coverage this would happen to her even if she has an employer who files an H-1B petition, before June 30th or during her grace period, and obtains an approval. Without the gap coverage, when the employer's H-1B petition is approved, it will not be approved for a "change of status," which means that Maria will remain in her current F-1 status until she leaves the country and re-enters with an H-1B visa in October.

With the gap coverage, Maria will be able to remain in the U.S. in lawful status after her program of study and her optional practical training ended on June 30th, even though the new H-1B nonimmigrant status being requested cannot take effect until October 1, 2004. This way, Maria does not have to leave the country and re-enter; she may stay in the U.S. in valid status until her new H-1B takes effect on October 1. However, after the expiration of her optional practical training, she will not have work authorization and must be taken off payroll until her H-1B takes effect. Any employment after the end of her optional practical training and before her H1B takes effect will be a violation of status which will impact her ability to change status in the future and to obtain permanent resident status through adjustment of status in the U.S.

It is not yet known whether students who are admitted to the U.S. for duration of status in other visa categories will be able to take advantage of this notice, or whether there will be a solution for change of status applications that already have been denied.

The notice is expected to be published within 90 days, although it is expected soon in light of the timing of the issue.

Greenberg Traurig will provide updates as they become available.