Expanding CapGap Relief for All F-1 Students

Expanding CapGap Relief for All F-1 Students

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

DHS NO. ICEB-2008-0002

ICE NO. 2124-08

RIN 1653-AA56

Extending Period of Optional Practical Training by 17-Months for F-1 Nonimmigrant

Students with STEM Degrees and Expanding CapGap Relief for All F-1 Students with

Pending H-1B Petitions

AGENCY: U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration

Services; DHS.

ACTION: Interim

Expansion of Cap-Gap Relief for AU F-1 Students with Pending H-1B Petitions

Currently, F-1 students who are the beneficiaries of approved H-1B petitions, but whose

period of admission (including authorized periods of post-completion OPT and the subsequent

60-day departure preparation period) expires before the H-1B employment start date, have a gap

in authorized stay and employment between the end of their F-1 status and the beginning of their

H-1B employment. This situation is commonly referred to as the "capgap."

USCIS is authorized to extend the status of F-1 students caught in a cap gap between the

end of the student's F-1 status and the start date on his or her approved H-1B petition.' 8 CFR

214.2(fXS)(vi). The cutrent regulations, however, do not provide for a commensurate extension

of students' employment authorization to cover the gap period. Additionally, the regulations

currently provide that USCIS must determine that the H-1B cap will be met prior to the end of

the "current" fiscal year before it may authorize an extension of stay for students subject to the

cap gap for that fiscal year by means of a notice published in the Federal Register.

This interim rule expands the relief offered by the existing cap gap provision by first

eliminating the limitation that cap gap relief be authorized only when the H-1B cap is likely to be

reached prior to the end of the current fiscal year. This interim rule also removes the

requirement that USCIS issue a notice in the Federal Register to announce the extension of

status and instead allows an automatic extension of status and employment authorization for F-1

students with pending H-1B petitions. If USCIS denies a pending H-1B petition, the student will

have the standard 60-day period (&om notification of the denial or rejection of the petition)

before they have to leave the United States.

Unlike the extension of post-completion OPT, which is limited to F-1 students who have

obtained STEM degrees, the extension of status for F-1 students in a cap-gap applies to all F-1

students with pending H-1B petitions during a fiscal year.

Tbc current regulations slso require that the ' C m m i s s i d p issue the notice in the Federal Register. This is a

tsclmical error because this regulation has not been updated since the mpomiiiities of the Commissioner of the

forma INS were transferred to the Department of Homeland Security in March 2003 under the Homelsnd Sccunty

Act of 2002. Because DHS is 1cm0- this provision altogether, there is no need to make the technical correction

from id' to "Director [of USCIS]" at this time.