In view of the recent changes announced by USCIS to the rules for student work authorization, we recap some options especially geared for international  students who are intending to stay and work in the US using the H-1B visa.  Here are some guidelines on possible extensions for STEM (Science, Technology, Engineering, Math) graduates.

Optional Practical Training (OPT)

• As of May 10, 2016, STEM graduates will be eligible for a 24-MONTH extension of the Optional Practical Training (OPT), knows as a “STEM Extension.”  

• Those with previously issued 17-month STEM extension can apply for an additional seven month extension between May 10 and August 8, 2016, IF they have at least 150 days remaining on their current STEM extension.  See the DHS page about STEM OPT for more information.

• If you have an H-1B pending under the quota and are also eligible for a STEM extension, we recommend applying for it, even if your H-1B is picked up in the quota and is pending for the following reasons:
  • If your H-1B is denied, then you will be able to continue on F-1 status with the STEM OPT work authorization.
  • Your H-1B may not be approved by October 1, 2016.

Cap Gap Work Authorization

• Cap Gap work authorization only extends until October 1, 2016.

• IF your OPT expires before October 1, 2016 and Cap Gap extends your OPT until 10, 2016, you might still have a gap in employment until the H-1B approval date.

• In some years, some quota cases are still pending into the January or February of the following year.

• In order to apply for the STEM extension, you must work for an E-Verify employer.

• The new STEM extension regulations, which go into effect in May 2010 have additional requirements.  See the DHS page about STEM-OPT for more information.

• In the worst case scenario, USCIS will approve your H-1B petition for CONSULAR processing.  You will need to leave the US, and get the H-1B visa stamped in your passport.

CAP-GAP OPT  

• IF your OPT is valid as of April 1, 2016 and expires before October 1, 2016 – CAP GAP
• If your OPT is valid as of the date that your H-1b petition is submitted, then your work authorization will automatically continue while your H-1b petition is pending up until October 1, 2016 unless your petition is denied prior to this date.  However, it is advisable to get a new I-20 from your foreign student advisor that shows the extension.

Grace Period

• If your OPT is expired and you are in your 60-day grace period when your H-1b is filed, then your grace period will be extended while the H-1b is pending
• You may remain in the U.S. while the H-1b is pending.
• You will NOT be work authorized while on your extended grace period.

If your OPT is expiring and your H-1b is still pending

• The USCIS has been slow about adjudicating some regular processed H-1B petitions.  Therefore, your H-1B petition might NOT be approved before your OPT expires.  If your H-1B is still pending as of two months before your OPT expiration date (including the 10/01/2016 cap-gap extension date), then please alert your employer and consider converting the case to premium processing.

Curricular Practical Training (CPT)

The Immigration Agencies appear to have changed their opinion (and have conflicting opinions) as to when CPT is appropriate.  If you have CPT now (or had it in the past), then USCIS MIGHT consider that you have violated your status and you might have trouble getting a change of status from F-1 status to H-1B status.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.