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Posts Tagged ‘STEM’

What to Know About the H-1B Cap Gap

Wednesday, March 22nd, 2017

Visa_iStock_000016934361_ExtraSmall (2)By:  Allison McDowell, Content Coordinator

Current federal regulations allow for the automatic extension, if certain circumstances are met, of Optional Practical Training (OPT) time for F-1 students who have a pending or approved H-1B petition.  These “Cap Gap” provisions require that the beneficiary’s petition is subsequently selected and approved in the H-1B lottery.  If approved, Cap Gap helps cover the gap that may otherwise disrupt an employee’s employment authorization, which would occur between when the OPT EAD expires through September 30th, in other words, after the OPT ends and before an approved H-1B petition takes effect.  Any F-1 student with a timely filed H-1B petition and request for change of status will be allowed to extend the duration of F-1 status and any current employment authorization until the first day of the new fiscal year, October 1 st.  If the petition is not selected for processing, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for departing the USA.

Major Criteria

To be eligible for Cap Gap extension, the employer must file the H-1B Change of Status petition with USCIS and have it received prior to the post-completion OPT expiration date.  Or, if received by USCIS after the post-completion OPT expires but during the following 60 day grace period, the beneficiary’s F-1 status and permission to remain in the U.S. are extended, but there is no work authorization.

Effects of Premium Processing Suspension

 USCIS has suspended premium processing for all H-1B petitions for six months, starting April 3, 2017.  This also applies to H-1B quota cases, or “cap cases.”  This suspension could have major effects on those who have a status expiration date earlier than October 1, 2017.  For F-1 OPT beneficiaries, whose employment authorization is only extended until September 30, 2017, there would be a period of lack of employment authorization until the H-1B case is approved.  Similarly, L-1 visa, or other employment visa holders, may have their work authorization set to expire shortly after October 1, 2017 and the H-1B cap case may remain pending past October 1st, therefore leaving a gap in work authorization until USCIS completes processing of the case.

STEM OPT Extension

 Stem Extension could be available to bridge the gap in employment authorization for those that qualify.  Any F-1 nonimmigrant student with a degree in science, technology, engineering, or mathematics (STEM) can apply for a 24-month extension of their post-completion OPT employment authorization.  Students who are eligible for Cap Gap extension of their post-completion OPT can apply for a STEM OPT extension during the Cap Gap.  In order to be eligible, the employer must be enrolled in and in good standing with E-Verify, and the initial grant of post-completion OPT employment authorization must also have been related to the STEM degree.  Note that an application cannot be submitted once the H-1B petition is rejected, denied, revoked, or withdrawn and the 60-day departure prep period has begun.

Additions have recently been made to the list of STEM degrees and can be found at STEM Designated Degree Program List.  Additional information for F-1 students regarding STEM OPT extensions can be found at USCIS’s Optional Practical Training Extension for STEM Students (STEM OPT) page or the STEM OPT Hub.

Travel Outside U.S.

While USCIS is processing the H-1B visa petition, beneficiaries should not travel outside the U.S.  Doing so would void the Change of Status H-1B petition, subsequently turning it into an outside the U.S., Consular Processing H-1B petition.  Similarly, if the practitioner selects consular processing, the H-1B petition will not process under the Cap Gap regulations, which would be disastrous to the case.  Leaving the U.S. while employment authorization is based on Cap Gap voids the Cap Gap authorization.  Therefore, the employee will only be able to re-enter the U.S. up to 10 days prior to the effective date of a subsequently approved H-1B petition.

Practitioners need to be aware of the effects of foreign employees traveling abroad, as many attorneys who are not skilled in business immigration are not aware of the major consequences of visa beneficiaries doing so.


The H-1B Cap Gap authorization also applies to dependents of the visa beneficiary that are in valid F-2 status, including spouses and children.  Keep in mind, however, that the travel restrictions also likely apply to dependent visa holders, whose foreign travel may void the Change of Status petition.




Details on the Proposed STEM OPT Rule

Sunday, October 25th, 2015

Passport immigration stampReports are that DHS has begun circulation of one of Obama’s employment-based executive actions which is also in response to a judge’s order that struck down the existing STEM OPT program for a lack of a notice & commenting period with the issuance of the 2008 interim rule.  The public will have 30 days (until November 18) to comment on the proposed rule.  You can view the notice in the Federal Register here

The Rule will make several changes to the F-1 STEM OPT program.  Most importantly, the STEM OPT extensions would increase from 17 to 24 months.

The new rule adds both additional benefits and employer requirements for all individuals and companies utilizing OPT.  Here is an excellent summary of the proposed changes as posted on


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DHS Broadens STEM H-1B Job Prospects for Foreign Grads in Science Fields

Sunday, May 15th, 2011

Foreign students studying at U.S. universities have traditionally had a year after graduation in which to find a job, allowing them to live and work in the United States. Three years ago, the U.S. Department of Homeland Security (DHS) changed immigration rules to stretch this window of time from 12 to 29 months for students graduating in certain areas of science, technology, engineering, and mathematics.

On May 12, 2011, DHS announced that it was expanding the list of disciplines eligible for the extension. The revised list adds fields such as neuroscience, marine science, environmental science, pharmaceutics and drug design, and education research. It also greatly expands its listings within the agricultural sciences and psychology. The decision follows a yearlong review of requests from businesses and academia to add new fields, says Gillian Christensen, a spokesperson for DHS’s Immigration and Customs Enforcement.

The announcement follows President Obama’s recent remarks in El Paso, Texas, where he reiterated his strong support for new policies that embrace talented students from other countries, who enrich the nation by working in science and technology jobs and fueling innovation in their chosen fields here in the United States, as a part of comprehensive reform.

By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high tech sectors of talented scientists and technology experts-permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and remain in the USA, to extend their post-graduate work authorization.

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.

Compete America Sends Letter to Congress

Sunday, July 20th, 2008

Compete America, the largest coalition for employers for immigration reform, are asking Congress for the following:  To exempt students in STEM occupations from employment quotas; to abolish per country limitations, and to recapture employment based numbers from previous years. In a letter to Congress dated July 17, 2008, Compete America is asking for Congress to support three bills that will make necessary adjustments to the employment-based green card system.  The measures are H.R. 6039, H.R. 5921 and H.R. 5882, which should be enacted without delay, according to the letter.

The following is taken directly from the letter:

“America’s scientific and technological leadership is at a crossroads.  To remain the world leader in innovation, U.S. employers must have access to much-needed and sought-after highly educated talent – including scientists, researchers, teachers and medical professionals.  Foreign-born professionals make great contributions to the U.S. economy and create good, high-paying jobs for all Americans.U.S. employers rely on EB green cards to keep foreign-born talent living, working and innovating in America.  Yet, despite the critical importance of these visas, Congress has failed to address the well documented backlogs in the EB green card system that leave some foreign-born, highly educated professionals waiting over six to 10 years to receive a permanent resident visa.   

The three bills will address many shortcomings in the EB green card system. For example:  

  • H.R. 6039, by exempting highly educated, foreign-born students earning an advanced degree in science, technology, engineering or mathematics from a U.S. university from the annual EB green card limit, would help U.S. employers retain these talented individuals in the U.S. workforce.  For example, foreign nationals comprise half of the master’s and 70 percent of the Ph.D.s in electrical engineering from U.S. universities. 

  • H.R. 5921 will help put an end to multi-year wait times by eliminating unduly restrictive per country limits on EB green cards.

  • H.R. 5882 will help to reduce visa backlogs by “recapturing” EB green cards from prior years that went unused due to government processing delays and making them available immediately to those who meet the requirements.”

For more information on the inquiry to Congress:
Read the letter
from Compete America