The H-1B Cap and the New OPT Rule

A couple of very important developments have occurred in the past few days that affect students on OPT and those who just recently filed for an H-1B petition for the upcoming fiscal year.
The first development is that USCIS has just announced that the H-1B cap has been reached. Although that is not a surprise, the big surprise is that the Masters cap of 20,000 has also been reached. At this point, USCIS has not released any numbers as to exactly how many regular petitions and how many Masters petitions were received.
USCIS will be running a random lottery for the Masters cases. Once the 20,000 Masters cases are selected, the remaining Masters cases will be added to the pool of petitions in the regular H-1B cap. At that time, USCIS will then run a second lottery for the general H-1B quota of 65,000 (it is actually less than 65,000 due to some set aside numbers for Chile and Singapore.) This effectively means that Masters degree holders will have two shots at an H-1B number. Again, at this point we have no idea as to how many petitions were received, but based upon the fact that the Masters cap was reached so fast, we can only guess that the total number of H-1B petitions filed is probably substantially higher than the 130,000 petitions received by USCIS last year.
The second important news occurred on Friday, April 4th. On that date, the government suddenly issued a rule that may extend the OPT and solve the cap-gap problem for some individuals. For those of you who do not know what the “cap-gap” is, this happens when the OPT expires prior to October 1st. The time period between the expiration of the OPT (plus the 60 day grace period) and October 1st is know as the cap-gap.
Here is what this new rule accomplishes:
Extension of OPT for certain students - students with degrees in Computer Science Applications, Actuarial Science, Engineering, Engineering Technologies, Life Sciences, Mathematics, Military Technologies and Physical Sciences will be able to apply for a 17 month extension of the OPT.
In order to be eligible for this extension, two further requirements must be met: (1) the student’s employer must be enrolled in the E-Verify program; and (2) the student must apply for the OPT extension at least 90 days before the current-post completion OPT expires.
Two quick comments concerning the above:
if the employer is not involved in the E-Verify program, a program to help ensure that illegal aliens are not being hired, it is unlikely that an attorney would recommend that a corporation enroll into E-Verify simply to help its OPT students. The reason is that the E-Verify program is a flawed program that adds to a company’s legal exposure and liabilities. Companies will make their own decisions on this, but you should know that most attorneys would not be in favor of a company enrolling in E-Verify only to enable its OPT employees to extend the OPT. Obviously, each company will come to its own conclusions depending on their needs, but as an OPT, you should be aware of the difficult choice faced by companies.
the requirement that the OPT extension be filed with 90 days of anticipation will probably put the extension out of the reach of many who have an OPT expiring in the very near future.
Cap-gap Extension – all students on post-completion OPT who have filed a change of status petition for the upcoming fiscal year may continue to stay in the U.S. and work once the H-1B cap has been reached.
Once the lotteries are conducted, there are two outcomes. If the student’s H-1B is not selected under the cap, the automatic extension of the OPT terminates. If the H-1B petition is selected during one of the lotteries, the student may remain in the U.S. and continue working until the H-1B becomes effective.
Comments concerning the Cap-gap:
Notice that this applies to all fields, it is not limited simply to those with Computer Science Applications, Actuarial Science degrees, etc;
as of this moment, the rule does not appear to allow for the cap-gap relief for those students who filed petitions for consular notification. In other words, those of you who could not remain in the U.S. until October 1st because your OPT expired and you did not want to re-enroll do not appear to benefit from the cap-gap relief as of this time. Currently, the American Immigration Lawyers Association and other groups are trying to get the government to provide a solution for individuals in this situation. That being said, if you filed for a change of status and the time to leave the U.S. is here, you should follow through with your plans. In other words, do not overstay your grace period hoping that the rule will cover you;
only students who have maintained their status are eligible for the automatic extension of the OPT during cap-gap period.
This is a highly fluid situation and there are many clarifications that the government will need to make. For those of you who would like to read the FAQ from USCIS, please follow this link: http://www.usvisanews.com/downloads/faq_on_new_opt_rule.pdf. For those of you who would like to read the entire rule, follow this link: http://www.usvisanews.com/downloads/text_of_new_opt_rule.pdf.