April 6, 2009

Information for Employer on the Cap-Gap Extension of Optional Practical Training

U.S. Customs and Immigration Enforcement (“ICE”) has recently issued a Fact Sheet for employers on the “Cap-Gap” Extension of Optional Practical Training (OPT) for F-1 students with pending or approved H-1B petitions under specific circumstances.

The term “cap” refers to an annual numerical limitations on the H-1B nonimmigrant classification. Due to a high demand in recent years, the annual cap has been met during the initial filing period, beginning on April 1st with the H-1B employment start date on October 1st. F-1 nonimmigrant students who were the beneficiaries of an H-1B petition often had their F-1 status expire before their H-1B status began on October 1st leaving a gap of several months – a period referred to as the cap-gap.

On April 8, 2008, The U.S. Department of Homeland Security (DHS) published an Interim Final Rule (IFR) extending the period of Optional Practical Training by 17 months for F-1 nonimmigrant students with STEM (science, technology, engineering, or mathematics) degrees and expanding “Cap-Gap Relief” for F-1 students with pending H-1B petitions. The ICE Fact Sheet provides additional information to employers on this issue.

The IFR provides OPT extensions of 17 months for F-1 nonimmigrant students satisfying two criteria:

1. Obtaining a degree in science, technology, engineering, or mathematics (STEM); and
2. Employed by businesses enrolled in the E-Verify program. E-Verify is a voluntary web-based system that electronically verifies the employment eligibility of all newly-hired employees. For more information, please refer to our E-Verify corner.

The cap-gap extension of OPT is automatic for eligible students who have pending H-1B petitions and who filed a change of status. The H-1B petition must have been filed before their OPT expired. A student does not file an application for the extension to receive a new EAD to bridge the gap from the expiration of the student’s OPT until October 1st, start of the H-1B status. A student who is eligible for the cap-gap extension must obtain an updated Form I-20 from his or her school showing an extension of OPT which will serve of the proof of continued employment authorization.

Employment may be authorized under the OPT program to an F-1 student who has been lawfully enrolled on a full time basis, in an approved college, university, conservatory, or seminary for one full academic year. An eligible student may request employment authorization for practical training in a position that is directly related to his or her major area of study. A student may begin OPT on the date indicated on his or her employment authorization document, Form I-766 or Form 688B.

Employers may assist a student in obtaining an updated Form I-20 by providing the student with an I-797 receipt or approval notices issued by the U.S. Citizenship & Immigration Services for the H-1B petition filed on the student’s behalf. The receipt or approval notices will serve as proof to show the student’s eligibility for the cap-gap extension.
The ICE Fact Sheet is available on the ICE website at http://www.ice.gov/doclib/sevis/pdf/cap_gap_factsheet.pdf.