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F1 Students - after OPT

This years H1B cap has affected F1 students, whose Optional Practical Training (OPT) expires over the coming summer months. Most students graduate in May or June and their OPT will expire in May, June or July 2004.

Under current immigration regulations, an F1 student is granted a 'grace period' of 60 days to stay in the USA. Therefore, if a students OPT expires June 15th, 2004 will be legally entitled to stay in the US through August 14th, 2004.

Currently, H1B filing with a start date of October 1st, 2004 requires that F1 students must demonstrate legal status 'through' October 1st 2004. In the example above, the F1 student is 'not' in legal status from August 19th thru October 1st, 2004.

In situations like this, USCIS will approve the H1B petition BUT deny the change of status. Don't worry!! This only means that USCIS has approved the petition on behalf of the employer but denied the change of status. In such a situation, the F1 student would return to his/her home country and obtain a H1B visa stamp from the consulate and can then return to the USA.

However, the student can only return to the US ten (10) days before the October 1st H1B start date.

How to Bridge the Gap?

In the past, the USCIS (previously INS) had a safeguard mechanism in place for F1 Students. If it can be determined that H1B numerical limitation will be met in the current fiscal year, the Director of USCIS can extend the duration of status of any F1 student. To be eligible for this extension the student must 'not' have violated the terms of his/her stay. If the director enacts this mechanism the F1 student will be considered to be maintaining lawful nonimmigrant status and a change of status to H1B will then be possible.

Eduardo Aguirre, Director of USCIS has not extended the duration of status for F1 students. However, given that the previous director did so the last time the H1B cap was met, one must assume that it is only a matter of time before the measure is introduced.

If re-introduced the measure will serve to "bridge the gap" that many F1 (OPT) students currently face.

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