H-1B Cap Gap and OPT Extension

H-1B Cap Gap and OPT Extension

What is the Cap-Gap?

If you are reading this article on the “Cap-Gap” rule, then you most likely are familiar with terms such as H1B, F-1, and OPT. If you are not familiar with these terms, explanations can be found elsewhere on this site.

The “cap gap” generally refers to the period of time between when your optional practical training (OPT) ends and your H-1B takes effect. In the past, it was quite common for your OPT to expire more than 60 days before October 1st, the date that the H1B takes effect, and therefore left you with unlawful presence during that period. The “cap” on the limited number of H-1B visa numbers issued each year created a “gap” in the prospective employee’s status; thus we have the term Cap-Gap. The new cap-gap regulations fix this.

How does the new Cap Gap regulation help?

This cap-gap extension automatically becomes effective when the H-1B cap has been reached and the student has an H-1B petition filed on his/her behalf during the acceptance period. This rule does not apply to all F-1 students, only those with F-1 OPT status and work authorization incident to status while an H-1B application is filed and pending. For example, if a student’s OPT expires on 6/15/09 (and his or her EAD card expires accordingly), and if the student has a valid H-1B application that has been accepted and is pending with USCS, his or her status and work authorization is automatically extended until USCIS makes a decision on the H1B.

What happens to the cap-gap if USCIS denies the H-1B?

If the H-1B application is rejected or denied on the merits, the status and work authorization would end on the date of rejection and/or denial. If approved however, the student’s OPT status and work authorization is valid until the beginning of the next FY, which always begins on October 1 of each year.

Extended OPT for students in the high-tech industry

F-1 academic students who receive science, technology, engineering, and mathematics (STEM) degrees and who receive an initial grant of post-completion OPT, may apply for a 17-month extension for a maximum of 29 months of post-completion OPT.

What are the eligible STEM degrees?

To be eligible for the 17-month OPT extension, a student must have received a degree in one of the following fields: Computer Science Applications, Life Sciences, Actuarial Science, Mathematics, Engineering, Military Technologies, Engineering Technologies, Physical Sciences, Biological and Biomedical Sciences, and possibly others.

Minnesota Immigration Lawyers

www.cundyandmartin.com

H-1B Employer Must Pay Back Wages

In a recent case from the U.S. Department of Labor, an employer that terminated an H-1B worker was ordered to pay back wages in the amount of $39,666.47, plus interest.

More importantly, the DOL held that termination of the H-1B employee did not become effective until the employer properly notified the immigration service about the termination. The judge held that even though the employee had not worked for the employer for several months, the employer must pay back wages because it failed to notify the immigration service in a timely manner.

This decision may have serious consequences in the H-1B world. Currently, many employers do not inform USCIS that the H1B worker has left the company as a favor to the employee so that the employee can try to find another employer willing to transfer the visa. As employers learn of this recent decision, I suspect that most will no longer be willing to hold off on informing USCIS and risk severe penalties.

For more information on H-1B visas, see http://www.cundyandmartin.com/practice-areas/immigration-law/h-1b.html

http://www.cundyandmartin.com/

http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/07_008.LCAP.HTM

H1B Start Now

USCIS, the immigration service that processes work visa applications, will begin accepting H-1B petitions on April 1. This will be for employment to begin on October 1. As in past years, it is expected that all 65,000 H1B visa numbers will be taken in the first day or two.

The H1B is not a green card. It is a temporary work visa, typically valid for three years. The H-1B allows people to work in the U.S. if they are filling jobs that require at least a bachelor's degree or higher.

If you are considering the H-1B, now is the time to start getting things in order for filing on April 1. What is the H-1B, see http://www.cundyandmartin.com/practice-areas/immigration-law/h-1b.html .

Minnesota Immigration Lawyer

H-2B Cap Reached, Posted by Minneapolis Immigration Lawyers

USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2009 (FY2009). USCIS is hereby notifying the public that Jan. 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2009.

USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009 that arrive after Jan. 7, 2009.

If deemed necessary, USCIS may apply a computer-generated random selection process to all petitions that are subject to the cap and received on Jan. 7, 2009 in order to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:
Extend the stay of a current H-2B worker in the United States;
Change the terms of employment for current H-2B workers and extend their stay; or
Allow current H-2B workers to change or add employers and extend their stay.