USCIS Provides F-1 OPT Cap-Gap Fix

The USCIS announced late last week that it would permit F-1 students who have properly filed H-1B petitions in April and have their petition selected during the random lottery to request a change of status processing in lieu of consular notification.

The Problem
On April 8, 2008, USCIS announced a rule which would automatically extend the F-1 status of students who are beneficiaries of approved H-1B petitions so that the cap between the F-1 status expiration and the employment start date of October 1 would be automatically covered under F-1.  However, the rule was published after the filing period for FY 2009 H-1B had closed and as a result, many F-1 holders who applied for H-1B visas calculated that their F-1 status would expire before October 1 and therefore they would have to leave the U.S. and requested consular notification on their H-1B application.

The Fix
As a result of the timing of the new rule, USCIS exacerbated a problem which the new rule aimed to solve.  To its credit, USCIS released guidance that it would allow F-1 holders whose H-1B petitions were randomly selected to receive H-1B visa number for FY 2009, to now request a change of status processing, if such requests are received within 30 days of the issuance of the H-1B receipt notice.

Procedure To Request Change of Status
The procedure to request a change of status in lieu of consular notification, petitioners (or authorized representative) should send an email with the request to the USCIS service center where the H-1B petition is pending within 30 days (and not before) of the issuance of the receipt notice.  The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 number, and SEVIS number.

The e-mail addresses for requestig change of status are:

• Vermont Service Center
  • Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@nulldhs.gov
  • Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@nulldhs.gov
• California Service Center
  • Premium Processing cases: CSC.ppcapgap@nulldhs.gov
  • Non-Premium cases: CSC.nonppcapgap@nulldhs.gov