H-1B petitions filed on behalf of F-1 students can be upgraded to request a change of status so that students can take advantage of a new rule that extends their F-1 stay through their approved H-1B employment start date.
U.S. Citizenship and Immigration Services (USCIS) will allow an H-1B petition filed on behalf of an F-1 student to be upgraded to request a change of status to H-1B so that the student can take advantage of the agency’s new “cap gap” rule, according to an agency press release that was published today. The announcement is good news for students who were not eligible for a change of status at the time their Fiscal Year (FY) 2009 H-1B petitions were filed between April 1 and April 7 of this year.
USCIS’s new cap gap rule allows an F-1 student’s period of lawful stay and any work authorization for optional practical training to be automatically extended through the October 1 start date of his or her approved H-1B petition. The rule makes it possible for F-1 students to remain in the United States until they become eligible to begin their approved H-1B employment, rather than having to depart the United States, apply for an H-1B visa abroad, and re-enter to begin work. (Note that the automatic extension terminates immediately if the H-1B petition is rejected, denied or revoked.) To qualify for this cap gap relief, the F-1 student is required to be the beneficiary of a request to change status to H-1B. However, when employers began submitting FY 2009 H-1B petitions on behalf of F-1 students, the cap gap rule had not been released and students whose periods of stay were set to lapse before October 1, 2008 were legally ineligible for a change of status.
To be upgraded to a change of status, the petition must have been allocated a cap number in the H-1B selection lottery and the petitioning employer must have received a filing receipt. To request the upgrade, the employer or its immigration counsel may send an e-mail to the USCIS Service Center that is adjudicating the petition. The request must be made within 30 days after the petition filing receipt is issued. The e-mail must contain the petition receipt number; the names of the petitioner and the beneficiary; and the beneficiary’s date of birth, Form I-94 Arrival-Departure Record number, and Student and Exchange Visitor Information System (SEVIS) number. USCIS has designated the following email addresses for change of status upgrade requests: