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From Student Visa to U.S. Permanent Resident- STEM ,OPT and the Student F-1 Visa

The value of International Students in the United States and their ability to impact and position the United States for economic growth is becoming more and more recognized by U.S. policy and lawmakers.

Student visas are issued to international students to attend school in the United States called F-1 visas.  After a foreign national completes their program in the United States, they are offered Optical Practical Training (“OPT”).  The purpose of this blog article is to explain a couple common obstacles with beginning work in OPT status and “after the initial one year”, extending OPT. There are some exciting changes making it easier for many students to begin work right away, and extend their OPT until they are able to adjust status to U.S. Permanent Residents( based on an I-140 Petition filed by employer), or change status to another work visa called an H-1B visa.

Case Example:

Say a foreign national’s OPT expires July 2013. She is already on an extension called “STEM” (explained below). If an H-1B Petition is filed for him on April 1, 2013 for October 1, 2013 start date, will her OPT be automatically extended until October 1, 2013 under automatic cap-gap?  The answer is yes..see below.

What is cap-gap: Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.  This is referred to as filling the “cap-gap,”meaning the regulations provide a way of filling the “gap” between the end of F-1status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an FY 2013 H-1B cap-subject petition is April 2, 2012 for employment starting not before October 1, 2012.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1, 2012.  Consequently, F-1 students whose periods of authorized stay expire before October 1, 2012, and who do not qualify for a cap-gap extension, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

The Department of Homeland Security (DHS) recently expanded the list of four year degree programs under STEM which can extend their OPT beyond a one year period.  The acronym “STEM” stands for: science, technology, engineering, and math (STEM) designated-degree programs that qualify eligible graduates on F-1 student visas for an optional practical training (OPT) extension. Under the OPT program, foreign students who graduate from colleges or universities in the U.S. are able to remain in the country and receive training through work experience for up to a 12 month period. Students who graduate from a designated STEM degree program can remain for an additional 17 months on an OPT STEM extension.  By expanding the list of designated STEM degree programs to include new fields such as  econometrics and quantitative economics, DHS seeks to retain highly qualified and talented workers in the United States.

For questions about F-1 student status, OPT, cap-gap and STEM programs we invite you to contact our law firm at info@scottcclaw.com for a consultation, or call us at our office numbers conveniently listed at www.scottcclaw.com.

ScottMond Law Firm


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