U.S. Citizenship and Immigration Services announced on April 18, 2008 a special "cap gap solution" for F-1 students whose Optional Practical Training (OPT) expires before October 1, 2008. An April 8, 2008 interim final rule automatically extended OPT for F-1 students, but it applied only in those cases where the employer requested a "change of status" on the H-1B petition. To be eligible for the change of status from F-1 student to H-1B temporary worker, however, the student must have had less than a 60-day gap between when the OPT expires and October 1, 2008. Therefore, when employers filed H-1B petitions on April 1, it was not possible to request a change of status for any F-1 student/employee whose OPT expired on August 1, 2008 or earlier. Therefore, there were many individuals who could have benefited from the new regulation had it been published before April 1.
Recognizing the inequity of the situation, the solution announced on April 18 allows employers whose H-1B petitions are accepted on behalf of an F-1 student to amend the petition and request a change of status. The OPT then will be extended to October 1, and the individual will be permitted to remain in the United States and continue working without interruption. This is a significant benefit for individuals who otherwise were planning to spend several months abroad after their OPT expired and before they could obtain H-1B visas and return on or after October 1, 2008. After the H-1B filing confirmation has been issued (all notices are to be issued by June 2, 2008), the employer will have 30 days to amend the petition and request the change of status.
