The United States Citizenship and Immigration Services (USCIS) announced that it is now allowing F-1 students who are beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request the petition to be processed as a "change of status" in lieu of consular notification. This practice allows F-1 students to take advantage of the agency's new "cap gap" rule and is good news for those F-1 students who were not eligible for a change of status at the time the FY2009 H-1B petitions were filed on their behalf between April 1 and April 7, 2008.
The "cap gap" rule automatically extends the F-1 student's period of stay and any work authorization for optional practical training (OPT) through October 1, 2008, the start date for approved FY2009 H-1B petitions. Accordingly, F-1 students who benefit from this rule may remain in the United States in lawful status until they become eligible to commence their approved H-1B employment. Prior to the rule, an F-1 student with an approved FY2009 H-1B petition, but whose status or work authorization was set to expire prior to October 1, 2008, would have to depart the U.S., apply for an H-1B visa abroad and re-enter to commence his/her H-1B employment. Note, however, that if the USCIS subsequently rejects, denies, or revokes the petition, or for those who violate their status, the automatic extension terminates at that time.
To obtain the automatic extension provided by this new rule, an H-1B petition filed on behalf of an F-1 student must be indicated as a "change of status." H-1B petitions that were filed on behalf of F-1 students under "consular notification" because the cap gap rule had not been released and the student was ineligible for a change of status because his/her period of stay was set to lapse before October 1, 2008, may now "upgrade" the petition to a "change of status" petition upon selection in the H-1B lottery. To request the upgrade to "change of status," the petitioning employer or its immigration counsel may submit a request via e-mail to the USCIS Service Center that is adjudicating the petition within 30 days of the issuance of the receipt notice. The e-mail must contain the petition receipt number; the names of the petitioner and the beneficiary; the beneficiary's date of birth, Form I-94 Arrival/Departure Record, and Student and Exchange Visitor Information System (SEVIS) number.
How This Affects You:
If you are an F-1 beneficiary of a selected FY2009 H-1B petition, with F-1 status or OPT authorization that would have expired prior to October 1, 2008 but for the new "cap gap" rule, please check with you petitioning employer and/or immigration counsel to ensure that a request for "change of status" is submitted to the USCIS. Please do not submit e-mails to the USCIS directly as this may cause confusion if a request has already been submitted on your behalf.
We will provide further information as soon as it becomes available.
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