US: “Flexibilities” for F-1s changing to H-1B visas
Published 26/10/2023
New flexibilities for international graduates in the US wishing to change from an F-1 visa to a H-1B visa have been proposed by the Department for Homeland Security and USCIS.
The change endeavours to extend the so-called cap-gap period, the time between when F-1 status expires and H-1B status begins.
Currently, employers who apply for H-1B petitions at the beginning of the fiscal year in April for international graduates they want to hire will generally have it approved before October 1, when such jobs usually begin – but some are not processed in time.
The October 1 date was already an extension that was cemented in 2016, allowing students and those who have completed OPT to stay longer than the usual 60 days after their studies, addressing the “cap-gap issue”.
DHS is proposing that this be moved to April 1 in the following calendar year – “or until the validity start date of the approved H–1B petition, whichever is earlier”.
This would be in order to ensure less and less former F-1s or those finishing OPT suffer any delays in processing and end up needing to leave the country before their H-1B visa is finalised.
“Changing the automatic extension end date from October 1 to April 1 of the relevant fiscal year would prevent the disruptions in employment [authorisation] that some F–1 nonimmigrants seeking cap-gap extensions have experienced over the past several years,” the proposal read.
“DHS recognises the hardships that a disruption in employment [authorisation] could cause to both the affected individual and their employer and seeks to prevent potential future disruptions by extending cap-gap relief.
“According to USCIS data for FY 2016–22, USCIS has adjudicated approximately 99% of H–1B cap-subject petitions requesting a COS from F–1 to H–1B by April 1 of the relevant fiscal year.
“As a result of this proposed cap-gap extension, DHS expects USCIS would be able to adjudicate nearly all H–1B cap-subject petitions requesting a COS from F–1 to H–1B by the April 1 deadline,” the document continued.
The move, among others to modernise the H-1B visa in general, would “streamline eligibility requirements, improve program efficiency, provide greater benefits and flexibilities for employers and workers, and strengthen integrity measures,” sources said.
“DHS recognises the hardships that a disruption in employment [authorisation] could cause”
While discussions had previously been made about further extending the cap-gap in 2016, officials in DHS argued that it would “reward potentially frivolous filings that would enable students” who were ultimately not qualified for H-1B status to “benefit from the cap-gap”.
“The October 1 cut-off serves to prevent possible abuse of the cap-gap extension,” DHS said at the time.
Sources told The PIE that USCIS still “remains committed to preventing misuse and fraud in the H-1B registration process”, and “meeting the ever-changing needs of the US [labour] market, and breaking down administrative barriers” for employers.
The original 60-day grace period still applies to those whose H-1B petition is still pending after April 1, the rule proposal said.
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