There have been several important developments affecting applicants for FY2009 H-1B visa numbers. To recap, we reported to you that on Tuesday April 8, 2008 USCIS announced that it had received enough H-1B petitions to meet the mandated cap for fiscal year 2009. Pursuant to this, on April 14, 2008 USCIS conducted a random selection process and chose all selected and even some "waitlisted" cases. Under USCIS H-1B policy, April 14, 2008 represented the 1st day of the 15 day "premium processing", for those clients that elected this. Because many decisions are being sent via regular mail, some premium processing cases may have been approved that we have yet to be informed about. . However, we anticipate being able to make this announcement shortly. For those cases that were not "premium processed", we should receive a receipt by June 2, 2008. For all cases that are not selected, the USCIS will return the filings with fees to our office, and our office will be contacting each employer directly to discuss alternatives.

Following the rush of filings, the USCIS issued an interim final rule on April 2, 2008. This interim rule provided two types of benefits for F-1 international students in extending their Optional Practical Training (OPT), but also left several questions unanswered. Since that time, some guidance on the implementation of that interim rule has been issued, which we summarize below.

Automatic Extension Of Optional Practical Training

The April 8, 2008, US Citizenship and Immigration Services interim regulation provided for a "Cap Gap" extension. The rule concerns post-completion Optional Practical Training for F-1 international students and their dependents. Students in OPT status who have approved or filed H-1B petitions (filed under the FY2009 cap) receive an automatic extension of their status and employment authorization until either:

(1) the H-1B start date of October 1, 2008 or

(2) until their application is rejected (not selected in lottery) or denied.

For those cases which are put on a "wait list" for possible selection (as indicated on their receipt notice), the OPT authorization is extended only to July 28, 2008 (at which time USCIS anticipates a formal receipt for selection will be issued, or the case rejected).

Please note that this automatic extension applies only to students who requested a change of status with their initial H- 1B Petition. Most F-1 applicants whose OPT was expiring in mid summer did not do so since it was not an option at the time. In recognition of this the Immigration Service established a new system to allow for an email request for a "change of status." This request can be sent to the USCIS within a limited time after arrival of the formal "receipt notice" for the H-1B Petition. . Our office is examining each case individually and will contact employers and employees for whom this email will be sent.

This employment authorization extension is deemed automatic, and there is no need to file a new I-765 form for an Employment Authorization Card (EAD). However, the Immigration computer system which covers student status "SEVIS" may not be automatically updated. Therefore, students should contact their Designated School Official (DSO), verify their SEVIS record, and request a revised I-20 showing the period of extension. A copy of this updated I-20 should then be given to both the employer and the attorney, with a copy retained by the student.

Extended Deadline For Post-Completion OPT Application

The interim final rule also expands the application period for F-1 students to apply for post-completion OPT. Students may now apply for post-completion OPT up to 90 days before their program end date and up to 60 days after their program end date. The application must be properly filed with the correct USCIS Service Center within 30 days of the date the student's DSO recommends OPT in SEVIS.

New Limits On Unemployment During OPT Status

The USCIS has, for the first time ever, imposed a limitation on periods of unemployment for students to maintain status during periods of practical training. Most students are now limited to a total of 90 days of unemployment during their period of post- completion OPT. The rule begins counting the 90-day period of unemployment after April 8, 2008. Further, the rule imposes an obligation on the students to report unemployment and/or change of employers to their DSOs. However, periods of up to 10 days between the end of one job and the beginning of another job will not be counted in the calculation for the time spent unemployed. (Students with degrees in Science, Technology, Engineering or Math fields (STEM) and work for an employer that is enrolled in e- verify, are eligible for a further OPT extension and are accordingly given an additional 30 days of allowable unemployment before their status maintenance is jeopardized.) For all students in OPT status, we therefore recommend that they request all OPT employers to provide them with a detailed record of their employment, including job description, job title, and hours of employment. Students should also maintain for their records evidence of the salary earned. This paperwork should be kept for several purposes, including H-1B petitions, greencard applications, and travel in student status.

Travel Outside the U.S.

Because of the above changes to student documentation and status requirements, we urge that before making travel arrangements, students covered by the rule should consult with our office and their DSOs. In particular, students with pending H-1B applications for change of status (or for whom a later email request is made) may need to consider paying the "premium processing fee" to the USCIS to get a decision before their departure from the US. Furthermore, students covered by the "cap gap" with an extended Form I-20, valid F-1 visa, but expired EAD card may be able to travel, but would be advised to have further documentation, including a copy of the interim regulations, to facilitate their admission.

If you have questions or concerns regarding this rule, feel free to contact our office for further consultation.