Extension of Post Completion Practical Training and F-1 Status for Eligible Students under the Cap Gap Regulations

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2009 under the FY 2010 H-1B cap. 

  
 What is the H-1B cap?

The cap is the congressionally-mandated limit on the number of individuals who may be granted initial H-1B status or visas during each fiscal year. For FY 2010, the cap is 65,000.
Not all H-1B beneficiaries are subject to the cap. Congress has provided that the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters' degree or higher are exempt from the fiscal year cap.  H-1B petitions filed on behalf of beneficiaries who will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations are exempt from the fiscal year cap. Generally, H-1B beneficiaries seeking to extend status and/or add employers are not subject to the cap.    

 What do Current F-1/H-1B Extension Regulations Allow?

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time where an F-1 student's status and work authorization would otherwise expire, and up to the start 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 F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students. An interim final rule published in the Federal Register last year authorized a cap gap extension for eligible students.  See  73 FR 18944 (April 8, 2008) "Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions."

 
How does "Cap-Gap" Occur?

An employer may not file, and USCIS may not accept, an H-1B petition submitted earlier 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 H-1B petition is April 1, for the following fiscal year, starting October 1. 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. Consequently, F-1 students who do not qualify for a cap gap extension, and whose periods of authorized stay expires before October 1, 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. 

 

Which petitions and beneficiaries qualify for a cap gap extension?  

H-1B petitions must be timely filed on behalf of an eligible F-1 student.  "Timely filed" means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the "grace period.")

Once a timely filing has been made, the automatic cap gap extension will begin and will continue until the H-1B process has been completed.  If the student's H-1B petition is selected and approved, the student's extension will continue through September 30th unless the petition is denied or revoked. If the student's H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice to prepare for and depart the United States.   Students are strongly encouraged to stay in close communication with their petitioning employer during the cap gap extension period for status updates on the H-1B petition processing. A Form I-797, Notice of Action, with a valid receipt number, is evidence that the petition was filed and accepted. 

How does a student covered under the cap gap extension obtain proof of continuing status?

The student should go to their Designated School Officer (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student's DSO will issue a preliminary cap gap I-20 showing an extension until June 1st.  If the student's petitioning employer receives a notice of selection from USCIS, the student should return to his or her DSO with a copy of the receipt notice, if possible, for issuance of a new cap gap I-20 indicating the continued extension of status.  

Students can also check the Student and Exchange Visitor Program information from the Related Links section of this page.

What if the post-completion OPT expired before April 1? It appears that F-1 status would be extended, but would OPT also be extended?

A student who completed his or her post-completion OPT and who subsequently was in a valid grace period on April 1, would benefit from an automatic extension of his or her D/S admission under the cap gap, if the H-1B petition is filed during the H-1B acceptance period, which begins on April 1. The employment authorization, however, would not be extended automatically, because it already expired and the cap gap does not serve to reinstate or retroactively grant employment authorization.

Is a student who becomes eligible for an automatic extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap gap extension, the student will have the standard 60-day grace period (from notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States..

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation. Such a student in any event is not eligible for the automatic cap gap extension. Similarly, the 60-day grace period and automatic cap gap extension would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

May students travel outside the United States during a cap gap extension period and return in F-1 status?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired EAD issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. By definition, however, the EAD of an F-1 student covered under a cap gap extension is necessarily expired. As a result, if the student elects to travel outside the United States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his/her travel plans, accordingly.

Do the limits on unemployment time apply to students with a cap gap extension?

Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap gap extension.

If a student was not in an authorized period of OPT on the eligibility date for the cap gap extension, can the student work during the cap gap extension?

No. In order for a student to have employment authorization during the cap gap extension, the student must be in an approved period of post-completion OPT on the eligibility date.

May a student eligible for a cap-gap extension of status and employment authorization apply for a STEM OPT extension while he or she is in the cap-gap extension period?

Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., rejection, denial, or revocation of the H-1B petition), and the student enters the 60-day departure preparation period.

What is a STEM OPT extension?

F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT related to such a degree, may apply for a 17-month extension.  F-1 students may obtain additional information about STEM extensions on the Student and Exchange Visitor Program website from the Related Links section of this page.

Extension of Optional Practical Training Program for Qualified Students

Regulations Relating to Practical Training:

 

What is optional practical training?

Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student's major area of study. Under the prior rules, an F-1 student could be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies.

• Pre-completion OPT:

An F-1 student may be authorized to participate in pre-completion OPT after he or she has been enrolled for one full academic year. The pre-completion OPT must be directly related to the student's major area of study. Students authorized to participate in pre-completion OPT must work part-time while school is in session. They may work full time when school is not in session.

• Post-completion OPT: 

An F-1 student may be authorized to participate in post-completion OPT upon completion of studies. The post-completion OPT must be directly related to the student's major area of study.

 

What is the application process to participate in pre- or post-completion OPT?

• Students must initiate the process by requesting the Designated School Official (DSO) at their academic institution to recommend the OPT. The DSO makes such recommendation by endorsing the student's Form I-20 and by making appropriate notation in SEVIS, the system used to track F-1 students.
• Students then file Form I-765, Application for Employment Authorization Document (EAD), with U.S. Citizenship and Immigration Services (USCIS). If approved, USCIS will issue an EAD to the student.
• The student may begin engaging in pre- or post-completion OPT only after an application has been approved and an EAD has been issued.

 

How many students stand to benefit from this interim final rule?

ICE records indicate that there are approximately 70,000 students currently in OPT and, of those, about 23,000 are studying in Science, Technology, Engineering, or Mathematics (STEM) fields. Some of these students will be selected for an H-1B to start in October 2008. Others may choose to continue their education, while some will depart the United States. ICE and USCIS estimate that approximately 12,000 will take advantage of the STEM extension.

 

What is the maximum duration of post-completion OPT under this interim final rule?

Under the new rule, certain students will be eligible to receive a 17-month extension of post-completion OPT.

 

Do the periods of pre-completion OPT count against the available periods of post-completion OPT?

Yes. All periods of pre-completion OPT are deducted from the available periods of post-completion OPT.

 

When must a student apply for an OPT extension?

• Under the prior regulations, F-1 students had to apply for post-completion OPT prior to graduation.
• This rule allows F-1 students seeking initial post-completion OPT to apply during their 60-day departure preparation periods in the same way that they are allowed to apply for a change to H-1B status during their departure preparation periods.
• Students may apply for an OPT extension at any time prior to the expiration date of their current OPT period.

 

Is there additional post-completion OPT available to students working in the high-tech industry?

• F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT related to such a degree, may apply for a 17-month extension. 
• This extension of the OPT period for STEM degree holders gives U.S. employers two chances to recruit these highly desirable graduates through the H-1B process, as the extension is long enough to allow for H-1B petitions to be filed in two successive fiscal years.

 

What are the eligible STEM degrees?

• To be eligible for the 17-month OPT extension, a student must have received a degree included in the STEM Designated Degree Program List. This list sets forth eligible courses of study according to Classification of Instructional Programs (CIP) codes developed by the U.S. Department of Education's National  Centerfor Education Statistics (NCES).
• The STEM Designated Degree Program List includes the following courses of study:

o  Computer Science Applications	o  Biological and Biomedical Sciences
o  Actuarial Science	o  Mathematics and Statistics
o  Engineering	o  Military Technologies
o  Engineering Technologies	o  Physical Sciences
o  Science Technologies	o  Medical Scientist

• The STEM degree list is included in the preamble to the interim final rule and will be posted on the ICE website.
• Note that to be eligible for an OPT extension the student must currently be in an approved post-completion OPT period based on a designated STEM degree. Thus, for example, a student with an undergraduate degree in a designated STEM field, but currently in OPT based on a subsequent MBA degree, would not be eligible for an OPT extension.

 

What are the eligibility requirements for the 17-month extension of post-completion OPT?

• The student must have a bachelor's, master's, or doctorate degree included in the STEM Designated Degree Program List.
• The student must currently be in an approved post-completion OPT period based on a designated STEM degree.
• The student's employer must be enrolled in E-Verify.
• The student must apply on time (i.e., before the current post-completion OPT expires).

 

What is the E-Verify program?

• The E-Verify program is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA).
• The E-Verify program currently is the best means available for employers to determine employment eligibility of new hires and the validity of their Social Security Numbers. 
• E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 with records contained in SSA and DHS databases to help employers verify identity and employment eligibility of newly-hired employees. 

 

Is there a cost associated with employers participating in the E-Verify program?

• No. E-Verify is a free, easy-to-use web-based system available to employers and in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. 

 

What is the application process for the 17-month STEM extension?

• The student files Form I-765 with USCIS, Form I-20 endorsed by the DSO, a copy of the STEM degree, and the required application fee.
• Form I-765 is being amended to require the student to indicate the degree and provide the employer's E-Verify information.
• If their post-completion OPT expires while the 17-month extension application is pending, students who timely filed their STEM extension applications with USCIS will receive an extension of employment authorization after their current employment authorization expires, but for no more than 180 days.  

 

What must a student do after being granted the 17-month STEM extension?

• The student must report to his or her DSO (within 10 days) any change in:

• Legal name;
• o  Residential or mailing address;
• o  E-mail address;
• o  Employer name;
• o  Employer address;

• The student must also report to his or her DSO every six months, confirming the information listed above; even if there have been no changes.
• The requirement to report continues if the student's 17-month STEM extension is extended further by the automatic cap-gap extension.

 

Regulations Relating to F-1/H-1B Cap-Gap:

 

What is the H-1B cap?

The cap is the congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000, with certain statutory cap exemptions.

 

What is the F-1/H-1B "cap-gap"?

Cap-gap occurs when an F-1 student's status and work authorization expire in the current fiscal year before they can start their approved H-1B employment in the next fiscal year beginning on October 1. An F-1 student in a cap-gap situation would, in most cases, 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.   Depending on when the student's status expires, such circumstances could require the student to remain outside the United Statesfor several months.

 

How does cap-gap occur?

• Under the prior regulation (and unchanged by this rule), an employer may not file, and USCIS may not accept, an H-1B petition submitted earlier 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 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 the approved H-1B employment is October 1. 
• Consequently, F-1 students who are the beneficiaries of approved H-1B petitions with October 1 employment start dates, but whose periods of authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day departure preparation period) expire before October 1, are in many cases 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. 

 

What were the prior cap-gap regulations for F-1 students?

• The prior regulations addressed the cap-gap problem by authorizing an extension of an F-1 student's authorized stay, but they did not extend the student's employment authorization. This extension was not automatic; a notice had to be published in the Federal Register announcing the extension.
• Under the prior regulations, when this Federal Register notice was published, the student's authorized stay was extended, but not the employment authorization. This meant the student could remain in the United States until October 1, when the approved H-1B employment began, but could not work until then.
• If a Federal Register notice authorizing an extension was not published, affected students would in many cases be required to leave the United States, apply for an H-1B visa, and seek readmission to the United States in H-1B status.

 

How is the cap-gap situation changed under the interim final rule?

• F-1 academic students on post-completion OPT maintain valid F-1 status until the expiration of their OPT. Once that OPT has ended, they are authorized to remain in the United States for up to 60 days to prepare for departure.
• Under this rule, the F-1 status of students is automatically extended when the student is the beneficiary of an H-1B petition for the next fiscal year (with an October 1 employment start date) filed on his or her behalf during the period in which H-1B petitions are accepted for that fiscal year.
• The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition.
• If the H-1B petition filed on behalf of the student is selected,  the student may remain in theUnited States and, if on post-completion OPT, continue working until the October 1 start date indicated on the approved H-1B petition.
• The student may benefit from this provision only if he or she has not violated his or her status.

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Related Files

• Questions and Answers (61KB PDF)

Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2012 under the Fiscal Year (FY) 2013 H-1B cap.

Questions & Answers

Q1. What is "Cap-Gap"?

A1. 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-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students. 

Q2. How does "Cap-Gap" Occur?

A2. 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. 

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?  

A3. H-1B petitions that are timely filed on behalf of an eligible F-1 student and request a change of status to H-1B on October 1, 2012 qualify for a cap-gap extension. 

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, which begins Monday April 2, 2012, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the "grace period").

Once a timely filed request to change status to H-1B on October 1, 2012 has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student's H-1B petition is selected and approved, the student's extension will continue through September 30, 2012 unless the petition is denied, withdrawn, or revoked.  If the student's H-1B petition is not selected, 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 and depart the United States. 

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing. 

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status? 

A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student's DSO will issue a preliminary cap-gap I-20 showing an extension until June 1, 2012. 

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer's Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted.  The student's DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.  

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval.  In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status? 

A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is for an October 1, 2012 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student's post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended? 

A7. F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).   

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?

A8:  Yes.  The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension? 

A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of this authorization.  F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period? 

A10. Yes.  However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1B petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date.  However, some students' OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date.  What should the student do to correct this?

A11. The student should contact their DSO.  The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk. 

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?

A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

§  the student finds employment appropriate to his or her OPT;

§  the period of OPT is unexpired; and

§  the DSO has requested a data fix in SEVIS. 

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.  

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?

A13.Yes.  The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect.  The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date.  This will prevent the student from changing to H-1B status.  Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved before resuming employment.

Q14. In cases where a student is authorized to work OPT past the H-1B change of status effective date, can the student continue working on OPT if a request to revoke/withdraw the H-1B change of status is submitted to USCIS?

A14. If the H-1B revocation occurs before the H-1B change of status effective date, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after the H-1B change of status effective date, the student will need to stop working before the H-1B change of status effective date, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.

NOTE:  This is NOT a cap-gap situation since the student has an EAD authorizing OPT beyond the H-1B change of status effective date.

Q15. Do students remain in valid F-1 status while the request to change the OPT end date is pending?

A15. If the H-1B revocation occurs before the H-1B change of status effective da te, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States. 

H1B transfer while extension is in progress and I-94 expired

1) Is it possible to apply for H1 transfer (w/ I-94 extended without going to home country) to your company using present receipt notice while extension is in progress? or I have to wait for my extension approval to do H1 transfer (w/ I-94 extended)?

A: We can process H1B Transfer with the Receipt Notice, using that as a Bridge. We can get an I-94 extended; you may not have to go to home country.

2) If I waited for my extension approval but if it is denied before applying transfer, still is it possible to apply for H1 transfer to your company with same H1 cap before leave to home country? 

A: If your present H1B is denied and we apply for a transfer; you will not get an I-94 and you will have to travel and get a visa stamped at the Consulate. If you feel that the present pending extension may be denied, you must act quickly.

3) If my H1 transfer is applied in premium while extension in progress and approved before extension, but if my extension case with my employer is denied, will it affect transfer approval (w/ I-94 extended)?

A: It will not affect the new H1B, as we have filed when it is pending. You will remain in status.

H1B Transfer Documents

H1B – Principal 

• Passport all pages (All Passports)
• Latest I-94 (Front and Back)
• Degree Certificates and Transcripts (Mark Sheets)
• All H1s held including Form(s) I-94
• Educational/Academic Evaluation (Foreign Equivalency for Overseas Educated Candidate)
• Entry & Exit Details (H1B)
• Experience / Reference Letters (if any)
• Resume
• Latest 3 Pay statements (If unavailable, proof of Relationship)
• SS Card
• H1B Employer-Employee Relationship Documents (We will send this to you)
• Signed Employment Contract (We will send this to you) 

H4 - Spouse 

• Passport all pages (All Passports)
• Latest I-94 (Front and Back)
• Marriage Certificate 

H4- Children 

• Passport all pages
• Latest I-94 (Front and Back)*
• Birth Certificate

H1B, H1B Transfer, H1 Visa Stamping, H1 Extensions FAQs

A collection of various H1b situations and the Questions asked by H1B visa holders. We have answered most of them, please come back as we will update this page everyday. 

Q: I'm planning H1 transfer to a new company. My last pay stub is from March 2010 (since then, I have been on leave, partly for medical reasons). My employment  has not been terminated. Visa is valid until 2012. Can I do safely transfer to a new company ?

Can I use pay stubs from March and/or medical reasons (statement from the company with doctors note) to explain my status? I traveled abroad recently  for 2 weeks and just got back. Now I'm fine and ready to change the company.

A: Yes, why not. That's perfectly legal. You may go on Vacation, Leave without being paid. As long as you maintain a relationship with your Employer by sending a written request and your employer approves the same.

Q: Who has to pay h1b related fees? employer or employee? Can employee pay this fees in this recession to get the job?

A: Employer always pays the Fee. Recession ended in 2009. 

Q: My H1b visa got stamped in July 2008.But i came to US in May 2010. My spouse attended for H4 visa stamping in Hyd consulate in mid of August 2010. VO after going thru all the documents ,said that your husband I797 status is in revoked state.They took her passport and asked her to mail the latest I797 as you might have missed that document.Once we receive the document we will send your passport in a week days time. When i contacted my employer ,i came to know that my I797 got revoked automatically in April 2009 and they have sent a mail to USCIS that they haven't revoke my I797 and they receive one more I797 in september 2009. So we have sent the latest I797 date september 2009 to consulate mail id. They called my wife and said that still the status of I797 is showing revoke.

Send us the update one.i have updated the same to my employer .They contacted the immigration department and they said that they are working on it and will get back in 3 working days. It was almost more than 2weeks. 

A:  If the H1B is revoked, they can never get back to you in 3 days. This Employer may have revoked your H1B in error. USCIS performs an administration revocation if any fraud is involved. You must move your H1B ASAP.

Q: I have been issued a 221g Green form at New Delhi Consulate. This is my first visa stamping experience. He ticked on all the check boxes.End client letter, internal project description, submit client letter, wage reports, w2 forms, notarized list of employees.My employer has told me not worry and said they will give me all the required documents. I want to know if my employer gives me the required documents and we submit them in 8-10 days. How much time on an average does it takes for the US Consulate to process the case at their end? My visa stamping is already delayed I was supposed to get it done last year(recession.... _. Now this additional delay is happening. Please advice and share your experiences with me.

A: Usually it takes 1-6 Months

Q: I have a question regarding H1B Visa transfer. I came to US in 2007 to pursue a Masters degree from a very reputed university on a F-1 visa.

In 2008 a company gave me an offer to do an internship during summer of 2008. I submitted this offer letter to the Office of International Education and got the CPT authorization. For some reasons this company told me they were having difficult times with the bad economy and therefore will not be able to continue with the internship.They didn't send any letter

regarding this to the university. Therefore I just stayed at home during summer of 2008 and didn't do anything. In fall of 2008 I got a fulltime offer from Another company B thru which I got my H1B visa sponsored in 2009. I am right now on H1B and have visited india couple of times after that with last month being the latest. I have secured an offer from another company C which is a big online retailer and they are in process of Transferring my H1B. Is there a way there can be any complications to my visa transfer due to the CPT issue?

A: CPT is Optional, no issues with H1B Extensions. I am sure you maintained your F1 Status, your CPT employment may be unpaid too.

Q: My H-1B document I-797A was approved by the California USCIS centre on August 09, 2010, about 5 days before the expiry of my driver's licence. When I took the documents to the DMV office, they did not renew my licence and said that  the information is not showing up in their records. Today it is 21 days without the licence. I have contacted several people, but still don't know what exactly they want. Did anyone had similar experience and what did you do?

A: Go to the local USCIS office and ask for a Letter to DMV. Make sure you carry all documents and explain the officer about the problem.

Q:  I am holding an H1B visa with my current Employer. My H1-B visa stamp expires on May 25th 2011. My I-797,  H1-B is valid through September 30th 2011 and the I-94 card. At the moment, I would like to move to CA to find new H1B Employer and get an H1-B Transfer. If I transfer employment to  employer after MAy 25th 2011 and before September 30th 2011, will this be an h1-b transfer or is it a new h1-B or apply for h1b extension?

The validity of your H1 is determined by the I-797 approval notice and the I-94 that came with it. If the H1B  Approval notice states that the visa expiry date is 30th September 2011, that  means that you can work for your current employer until that date.

Q: I was on H1B visa in my old company until June 30, 2010 (I-94 expired June 30, 2010). I got a new job and I applied for new H1B with intented employment start date as July 1, 2010 . The USCIS received my H1B premium processing application on June 24, 2010. I got I-797 finally on July 7, 2010 instead of July 1, 2010. I started working from July 7, 2010.

My questions are :

1. Am I allowed to stay in USA legally from July 1 till July 6, 2010 ?

2. Am I allowed to work under portability from July 1, 2010 till July 6, 2010 

A: 1.Yes, as you had a case pending - This is called 'Status provided by the Attorney General"

2. You may not. Portability applies only when you have a valid I-94 and you move to a new Employer. The bridge petition allows you to work.

Q: I have been on H1B since Dec 2003. So this is my seventh year on H1B based on a I-140 approval petitioned by my current employer.But my employment is in danger now. If I switch employers now, what does the new company have to do to transfer my H1B? How does it affect the green card process? 

A: You may switch H1B with the I-140. However, ask new Employer to file a new PERM labor, and Port I-140.

 Q: I work for Infosys. Direct employer in Pune. I am working for a US client for which Infosys has a contract with for 5 years. Now i have to go for stamping in September end. What will be the client letter in this case.Will the client letter be considered as from Infosys or the US Client which is the client i am working with.Infosys is going to pay me.

A: You need to get a Letter from the End/Actual Client NOT Infosys, even though Infosys is paying you.

Q: As we are aware that H1B cap for 2011 is still available (till 28th August cap reaches 34,900 count) and my current employer is planning to file my paper for the same, but my question that if we file  my case say on 10th September, 2010 then how soon i'll get H1b stamp if everything goes fine? If its take say 2-3 month, then is it good idea that first i will travel through B1(which may requires 2 weeks to get process) and then apply for H1B (ideally after 2 months as rejection rate is less) but here my biggest fear is that if by that time if H1B cap get filled then what will happens, will i still eligible to get H1B? So finally please guide me whether i will wait and directly go with H1B visa and for time being go with B1 visa and then file H1B? and how good is the H1B premium processing in my case?

A: You better try for Premium Processing after Travelling on H1B so you can start working right away.

Q: I am working for company A on L1b and company B has filed a h1 petition with coS. If it gets approved (with the new i94) by Sep17, I am planning to submit my resignation by 20th giving them a two weeks notice. My question is: Is it possible for the L1 company to cancel the l1 between 20th and october 1. If they cancel, will the COS become inactive?  Can I still join Company B on Oct 1 (even if company A cancelled my l1 before oct 1), without having to get the visa stamped by going to my home country?  Will this situation force me to go to home country for stamping?

A: 1) You must maintain status until Sep 30, (Make sure your Employer filed a COS to begin 10/01)

2) You better resign on 30th of Sep to maintain Status - Else, you will be off status for 10 Days

3) If it is a COS and your H1B Comes with a new I-94, you don't have to go for stamping. You can work, if you need to travel, you need an H1b visa Stamping. Good luck!

Q: If the H-1B worker has H-1B status from an employer and will continue to work for that employer while commencing new employment for a second employer, the second employer  must file an H-1B petition requesting extension of H-1B status of the worker. However, they also specifically say that, it has to be an extension but not a transfer.  When a second employer files an H1B, do they have an option to choose between H1B Transfer and H1B Extension? Are they different?

Q: My employer has hired me as a full time employee. It says so on the offer letter. But on the H1B I-129 application, they have written 'part time' employee working for 25 hours a week. Even the LCA says part-time in the papers. Will this be an issue when I go to get the visa stamping? Also, this is my only project that i got as of now. So, is there a min. number of hrs,

I need to work while on H1? Is 25 hours legally approved? 

A: You may need an offer letter as Part-Time. There is no limit of work hours under FLSA (Fair Labor Standards Act). You should not have any problems at Consulate if you are working 25 Hours and it's perfectly legal.

Q: My H1 transfer to another company is approved. Now, I don't like move from present employer, though my H1 has been transferred, can I continue with my current Employer?

You may continue to work with your present Employer even though H1 transfer has been approved. You may inform the other Employer that you will not be accepting the transfer due to personal reasons. You may continue to work for your present employer as long as you have not reported for work with the new employer that applied for your h1-b visa transfer.

Q: I am holding an H1B visa from a Non-Profit Employer. Here are my Questions:  I have a job from a FOR-PROFIT Employer, am I considered into the quota?

It depends - If you got your previous H1B under non-profit quota (there is no quota actually), you are subject to quota when a for-profit company files your h1b. Please check with your present employer, if they filed when the regular quota lapsed.

Q: I just checked my status for H1b online, it says they have approved my petition. My employer had told me that he hasn't received any e-mail from USCIS, also she said they might have approved the petition for 1 year, so has anyone received approval for 1 year? Is there any option to check it online whether they have approved my petition for 1 year / 3 years?

A: Wait until you get the original. Employers get emails only for Premium Processing. Employer will know the duration of approval only when they receive the original for regular processing. If the employer said one year, they may have requested only for 1 year or USCIS approved only for 1 year based on your Client project.

Q: My company applied for my H1b extension through regular processing in the month of March. The receipt date is 22nd March '10. My file was submitted at the Vermont  service center. I had completed only few years on my H1B. The case status still says "Initial Review". Do anyone know how long it takes for the approvals to come through these days? The average processing time in the USCIS website says it is 2 months. But it's been more than 3 months now and there is no progress yet. Is it taking longer time now for the approvals to come through?

A: It is taking little longer now. If you are in an urgency, ask Employer to upgrade to Premium Processing.

 Q: My husband worked for State University, his H1B expired May 14 2010. He has changed his employer to University of ABC, starting August21.  His new employer has filed H1B petition before May 14 but the request to extension of stay was denied. now he became out of status and need to go to  Canada to get new I-94. Is the trip to Canada necessary? Is there any other way to get the I-94?

A: No other way,He must go to a Consulate, he may have to go to home country for stamping. As he may not get a canadian visa, if he is still here in the United States, he is overstaying and may result in a 3 Year Bar.

 Q: I have a fulltime job with company A in India. I received a job offer from company B in the US, for an IT consultant. Now,  Company B filed for my H1B visa, which is  approved. I have taken an appointment at Chennai consulate for stamping. Now, company A in India, does not want me to resign and said, we will file an "H1B Transfer" and send me to their US offices. 

I have never worked for Company B and I am still in India. Is it possible for me to still get H1B transferred to Company A?

A: You cannot transfer the H1B  to Company A without first stamping the visa and traveling to USA. You will have to re-stamp for Company A before you Travel. You may enter the US and work for Company B for at least 3 months before the H1 visa can be transferred. Your h1 transfer petition can be  be requested only if you have 2-3 pay stubs from Company B.

Q: The petition was sent and received on 18th Aug 2010 under premium processing. Got receipt on 19th Aug 2010 and website for Vermont Service Center shows Acceptance ( the first step). There is no update since then. It is direct hire. 15 Calender days would end on 2nd Sep 2010. Still no update means RFE?

A: They will definitely update either with an RFE or Approval. If 15 Days have passed, ask Employer/Attorney to send a mail or call the USCIS. They even refund the $1000.00 if the case is not adjudicated in 15 days.

 Q: I came to US on H4 and converted to H1 in 2007. H1B validity is upto Sep 2010. I want to convert to H4 due to personal problems. My Question is:

1.What documents are needed for converting from H1 to H4 from my side and from my spouse?

2.Can i apply online myself or I have to post documents to USCIS?

3.Can I apply without attorney as I maintained my status as of now and also having all payslips. Any idea about the attorney fee?

4.IF I apply online how the documents will be sent to USCIS like payslips, spouse H1,....?

5.Do i have to specify any reason?

6.Suppose if I apply  for COS on Sep 15 and USCIS recieved on Sep 15th then what will be the last of my H1B. Is it Sep15th? Please correct me!

A: 1.What documents are needed for converting from H1 to H4 from my side and from my spouse?

You need your paystubs and spouse's paystubs. Apart from that, your I-94, spouse's H1B/I-94, Marriage Certificate.

2.Can i apply online myself or I have to post documents to USCIS?

Use form I-539. It's easy.

3.Can I apply without attorney as I maintained my status as of now and also having all payslips.

Any idea about the attorney fee?

Yes, you can apply. If you need a cheaper service check Hotvisas.com. About $150.00

4.IF I apply online how the documents will be sent to USCIS like payslips, spouse H1,....?

Send a physical form. If you apply online, you need to print receipt and mail documents. (I do not know if they still have I-539 Online)

5.Do i have to specify any reason?

Nope.

6.Suppose if I apply for COS on Sep 15 and USCIS recieved on Sep 15th then what will be the last of my H1B. Is it Sep15th? Please correct me!

September 15th. You are right.

Q:  I am planning to go to Mexico for my H1 stamping, but i have some doubts regarding my W2.  In 2009 i was in USA only for 5 months (Aug - Dec). So my W2 for 2009 shows less salary. I was out of country for some personal situation. I have all the paystubs of 2010 till date. My W2 for 2008 is ok, it does have full salary. I also changed my employer in May 2010 (which is a good/big financial company). I also got my H1B approved from this new company till 2013. Now my question is that, as my W2 shows less salary for 2009, will it be an issue in stamping? Could it be a reason in rejection/cancellation of my visa if i go for stamping in Mexico?

Should i go for stamping this year or just wait for another year, so that i will get W2 for 2010 and then go for stamping?

As a side question, is it advisable to go to Mexico for stamping in this situation or should i go to my home country (India)?

A: You should be ready to explain the Visa Officer, that you were not in the Country and you are not required to receive pay. You should be good, it is not required to maintain status with pay when you are not in the United States. 

You may go to Mexico, it's easy.

Q:I am planning to attend my interview for my H1b Visa Extension in Hyderabad, I don't see any dates in Hyderabad for september. I'll be in India from Sep 5th to Oct 1, since I stay in Hyderabad I want to attend the interview there. I heard that there would be agents who book the appointment dates if we provide them with basic details, can someone help me with any of such agent details.

A: This agent thing may not be legal. Don;t get into trouble.

Q:  I got laid off in March from Company A. Then consulting Company B filed a  transfer petition for its third part client. Company A filed termination on  my H1B. The transfer got denied for the non-existing employer-employee relationship. Company B filed an Appeal. Now the case is pending in AAO. 

I have three questions:

1. Have I legally stayed in US before getting the decision from Appeal?

2. Company B is willing to reassign me to its direct client and want to   file another transfer. Can company B do this? Should I go out of US to  get a new visa stamp if approved?

3. Can I go back to Company A? How should company A do to bring me back   after it revoked my H1B?

1. Have I legally stayed in US before getting the decision from Appeal?

yes.

2. Company B is willing to reassign me to its direct client and want to 

file another transfer. Can company B do this? Should I go out of US to 

get a new visa stamp if approved?

Yes. You may not have to go for stamping, if USCIS approves an extension of stay with an I -94

3. Can I go back to Company A? How should company A do to bring me back 

after it revoked my H1B?

They have to file a new H1B too.Same story!

Hi, My situation: I came to US in 2005 with a H1B visa. In 2007, i went back to India and my company filed for an extension. But USCIS sent a RFE and my company decided to withdraw the extention. I dont know the actual contents of the RFE. My company then filed a L1 visa for me in 2008 and i am back in US. My questions: 1. Can I transfer my old H1B visa (3 years expired) to join another company? 2. If yes, then will the RFE on the H1B visa be a problem ?

Yes, you can transfer H1B Visa and join our Company. The H1B RFE will have no affect as you are in L1 Status. 

1) Is it possible to apply for H1 transfer (w/ I-94 extended without going to home country) to your company using present receipt notice while extension is in progress? or I have to wait for my extension approval to do H1 transfer (w/ I-94 extended)?

A: We can process H1B Transfer with the Receipt Notice, using that as a Bridge. We can get an I-94 extended; you may not have to go to home country.

2) If I waited for my extension approval but if it is denied before applying transfer, still is it possible to apply for H1 transfer to your company with same H1 cap before leave to home country? 

A: If your present H1B is denied and we apply for a transfer; you will not get an I-94 and you will have to travel and get a visa stamped at the Consulate. If you feel that the present pending extension may be denied, you must act quickly.

3) If my H1 transfer is applied in premium while extension in progress and approved before extension, but if my extension case with my employer is denied, will it affect transfer approval (w/ I-94 extended)?

A: It will not affect the new H1B, as we have filed when it is pending. You will remain in status 

Question: i have a question regarding i94 expire: my wife applied for h1 transfer the case is still pending with supported RFE, and i am on dependent i mean H4 status, my i94 is expired 22 nd sep.i sent application for 1-94 extension with my wife petition

Answer: You are not out of status. If the Principal H1B is denied you will be out of status.