[Federal Register: April 8, 2008 (Volume 73, Number 68)]
[Rules and Regulations]
[Page 18944-18956]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ap08-3]
B. ``Cap-Gap'' and Need To Expand Relief to All F-1 Students With
Pending H-1B Petitions
As discussed above, nonimmigrant F-1 students on post-completion
OPT maintain valid F-1 status until the expiration of the OPT period
and the subsequent 60-day departure preparation period. Employers of
students already working for the employer under OPT often file
petitions to change the students' status to H-1B so that these
nonimmigrant aliens may continue working in their current or a similar
job. Many times, however, an F-1 student's OPT authorization will
expire prior to the student being able to assume the employment
specified in the approved H-1B petition.
Currently, an employer may not file, and USCIS may not approve, an
H-1B petition submitted earlier than six months before the date of
actual need for the beneficiary's services or training. 8 CFR
214.2(h)(9)(i)(B). As a result, the earliest date that an employer can
file an H-1B petition for consideration under the next fiscal year cap
is April 1, for an October 1 employment start date. If that H-1B
petition and the accompanying change of status request are approved,
the earliest date that the student may start H-1B employment is October
1. Consequently, F-1 students who are the beneficiaries of approved H-
1B petitions, but whose period of authorized stay (including authorized
periods of post-completion OPT and the subsequent 60-day departure
preparation period) expires before the October 1 H-1B employment start
date, would have a gap in authorized stay and employment. This
situation is commonly referred to as the ``cap-gap.''
An F-1 student in a cap-gap situation would have to leave the
United States and return at the time his or her H-1B status becomes
effective at the beginning of the next fiscal year. This gap creates a
hardship to a number of students and provides a disincentive to
remaining in the United States for employment. The cap-gap therefore
creates a recruiting obstacle for U.S. employers interested in
obtaining F-1 students for employment and submitting H-1B petitions on
their behalf. Moreover, when the student is already working for a U.S.
company on OPT and has to leave the United States, frequently for
several months, during the cap-gap period, the employer suffers a major
disruption.
USCIS is already authorized to extend the status of F-1 students
caught in a cap-gap between graduation and the start date on his or her
approved H-1B petition. 8 CFR 214.2(f)(5)(vi). However, before USCIS
can offer students any relief from the cap-gap, it must first determine
that the cap has been reached for the current fiscal year, or is likely
to be reached prior to the end of the current fiscal year, and then
publish a notice in the Federal Register announcing that status is
extended for students with pending H-1B petitions. Significantly, the
existing regulations do not take into account the fact that the H-1B
category is now oversubscribed to such a degree that USCIS' final
receipt date for petitions is now announced even before the start of
the fiscal year for which the petitions are being submitted and, in the
absence of an expansion of the 65,000 cap by Congress, this state of
affairs will likely continue indefinitely. The existing regulations,
therefore, are not an effective means of addressing the cap-gap problem
suffered by student beneficiaries of pending H-1B petitions (and their
employers).
This interim rule amends USCIS procedures by eliminating the
requirement that USCIS issue a Federal Register notice. Instead, this
rule extends the authorized period of stay, as well as work
authorization, of any F-1 student who is the beneficiary of a timely-
filed H-1B petition that has been granted by, or remains pending with,
USCIS. The extension of status and work authorization terminates on
October 1 of the fiscal year for which the H-1B visa has been
requested. This amendment better reflects the reality of the current
situation, where demand for
