Filing an H-1B visa petition this April meant that petitioners had about a 50% chance of being selected. The U.S. Citizenship and Immigration Services (USCIS) received approximately 172,500 H-1B petitions during the filing period this year; there are only a total of 65,000 general category cap slots and 20,000 cap slots for those with U.S. advanced degrees. Many of those rejected were F-1 student visa holders who graduated with U.S. degrees and some who were working pursuant to optional practical training (OPT). [See here for more information on OPT]. If an H-1B petition filed by a U.S. employer on behalf of an F-1 student is NOT selected in the H-1B cap lottery (rejected), the student may be left with few U.S. visa options.

F-1 student visa holders must be very careful in monitoring their student visa status at all times. However, it is particularly important to monitor status and ensure continuation of status if the H-1B visa petition filed on their behalf is rejected. F-1 student visa holders should note the following:

1. If an H-1B visa petition is denied, withdrawn, revoked, or is not selected, the cap-gap OPT work authorization extension terminates (see here for more information on cap-gap). If the student’s OPT has expired, s/he will have the standard 60-day grace period from the date of the rejection notice to prepare for and depart the United States or change to another visa status. F-1 students are not work authorized during this grace period.

2.If a student’s OPT ends in the spring (after April 1) and s/he is relying on cap-gap protection to continue employment, the student should be diligent in ensuring the school’s SEVIS record (web-based government database housing F-1 student visa information) reflects active status and that an updated Form I-20 is issued showing an extension pursuant to cap-gap.

3.Rejection Notices & Grace Period: If an H-1B visa petition is rejected (not selected for a lottery number), the student will have a 60 day grace period from the date of the rejection notice or the program end date, whichever is later, to prepare to depart the U.S.

EXAMPLES OF SEVIS TERMINATIONS: This past year, USCIS dated H-1B rejection notices 1+ month PRIOR to mailing the rejections notices to employers and legal counsel. In many cases a student’s OPT end-date may be early in the cap-gap scenario (for example, April 15) and the SEVIS record may terminate prior to the student’s ability to change to another visa status or request authorization to continue F-1 student visa status (e.g. continuance to graduate school or another full-time academic program). For example, if the rejection notice is issued on May 5, but not mailed to the employer or legal counsel until June 5, the grace period for the student whose OPT expiration date was April 15, will still end 60 days from the date of the rejection notice or their program end date, whichever is later.

In reality, F-1 students using cap-gap may not know the H-1B visa petition was rejected until 30 or fewer days from the receipt of the rejection notice. It is critical for F-1 students to stay in close contact with the Designated School Official (DSO) at the university and with their employer and legal counsel to check on the acceptance, denial or rejection of the H-1B visa petition.

The bottom line is that maintaining F-1 student visa status is ultimately the responsibility of the F-1 student. Maintaining close communications with the DSO, petitioning employer, and legal counsel will help students avoid possible problems.
 

Posted by: Holly Hatton