June 3, 2008

USCIS Provides I-9 Compliance Guidance for F-1s with STEM & Cap Gap Authorization

USCIS has released guidance to assist employers with I-9 Employment Eligibility Verification compliance following the welcome relief in the Department of Homeland Security’s April 4, 2008 interim final rule expanding OPT periods for F-1 students with STEM degrees and those who would otherwise be subject to the H-1B cap-gap.

Per the new guidance, employees who present the following documentation will have satisfied the Form I-9 acceptable documents requirement of “an unexpired Employment Authorization Document” under List A, #4:

F-1 Students with STEM Extensions:

1. Expired Form I-766 EAD.
2. I-797 USCIS Receipt Notice evidencing a timely filed STEM extension application.
3. Updated I-20 showing a DSO-recommended STEM extension for the period commencing on the date after the EAD expiration.

Employers should also note that these students are authorized to continue working while the timely filed STEM extension is pending for a period not to exceed 180 days.

F-1 Students with Cap-Gap Authorization:

1. Expired Form I-766 EAD.
2. I-797 USCIS Receipt Notice evidencing receipt of the H-1B petition.
3. A DSO-issued Cap-Gap I-20, generated by SEVIS with specific notations. Updated and detailed SEVIS policy guidance is available on the SEVIS website at http://www.ice.gov/sevis/index.htm.

If the H-1B receipt notice has not been issued at the time of the I-9 completion, presentation of the expired EAD and the Cap-Gap I-20 will suffice, although the employer must reverify upon the expiration date on the I-20 at which time the employee may present another Cap-Gap I-20. Employers should also note that these documents satisfy the I-9 requirements up until the expiration date notated on the Cap-Gap I-20 but no later than September 30th.

The April 4, 2008 interim final rule permits F-1 students with STEM (Science, Technology, Engineering, or Mathematics) degrees to apply for a one-time 17-month extension of work authorization beyond the typical 12-month period allotted under post completion OPT, while also granting F-1 students with timely filed cap-subject H-1B petitions with October 1st start dates automatic employment authorization extensions to cover the period of time between the expiration of the initial OPT period and approval of the H-1B petition when they would normally be left without work authorization.


The complete guidance summarized above may be accessed in full on the USCIS website.