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The regulations provide that a student within 90 days of completion of studies can apply for Option Practical Training (OPT). The regulations also provide that such OPT must be completed within 14 months of the end of studies. This creates a dilemma for many students who graduate in April or May and end OPT by June or July of the following year without immediate recourse to H-1B status which is often not available until October 1.

On October 1 of each year the H-1B quota becomes available for issuance of 65,000 new visas for individuals with bachelor’s degrees or higher and another 20,000 visas for individuals with master’s degrees from US universities or institutions. This quota is quickly filled by applicants who are allowed to apply up to 6 months in advance of the first day of quota availability. The application period begins on April 1st and is filled at an accelerated pace each year. In 2007, the H-1B 65,000 cap was filled by the end of second day of April with more than double the applicants for the number of visas available. Approximately a month later, the quota was filled for the 20,000 visas available for individuals with master’s degrees.

Gaps arise in authorized stay because OPT may expire in June or July of each year and H-1B status is not available until October 1. A few lucky students can bridge such gaps if their OPT expires in August by using the 60 days visitation allowed by regulation at the end of F-1 authorized stay. DHS will allow students with OPT expiring in August to bridge the gap till H-1B status is available on October 1 since it considers this 60 day period as authorized. Nevertheless, this 60 day period is not work authorized but is only for visitation and travel, which means no work is allowed in this period. Students often ask if they can volunteer during such gaps with their employers in order to keep their jobs. The definition of employment contained in the regulations defines employment as work for remuneration. The linkage of remuneration to employment suggests that truly voluntary employment is not a violation of status although it is likely that CIS would closely scrutinize such periods of volunteerism for any signs of remuneration. Additionally, there is a problem characterizing such employment on subsequent applications on labor certifications or biographic applications (form G-325As) where dates of employment are identified and CIS looks to the applicant for evidence that such periods were authorized for employment. Thus, volunteering in this gap period could raise issues subsequent whether the individual has violated status.

It is a real dilemma for students when their OPT expires more than 60 days prior to October 1, which is the date the H-1B quota becomes available. DHS expects them to leave the United States during any gap period and then come back after the H-1B visa is issued. Regulations allow entry up to 10 days in advance of the availability of H-1B status, which means the earliest reentry into the United States is September 20. The consulates normally allow the H-1B visa to be processed from 30 to 60 days in advance although there seems to be no particular policy driving such decisions. The search for alternative solutions to departure from the United States has consumed foreign students and their advisors.

The fact is there are only a few creative solutions available to F-1 Students. Institutes of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization are exempt entities from the H-1B quotas described above, which allows a few students to apply for H-1B status at the end of their OPT period without concern for visa availability. This exemption from quota requirements is an option for a few students lucky enough to be offered positions at qualifying institutions. Nevertheless, once these individuals enter the private workforce or are hired by a non-exempt employer, they must be cognizant of the importance to time their H-1B applications to qualify for an H-1B under the quota system since they lose their exemption once they leave their exempt employer. Thus, employment with an exempt organization may only temporarily alleviate problems associated with the H-1B quota system.

In order to avoid problems with the gap, F-1 students often contemplate changes of nonimmigrant status to F-2 or B-2, or consider extensions of their F-1 status by enrollment in post graduate programs. The application for F-2 status or even B-2 status can be problematic because of the methodology used by CIS in adjudicating such applications. CIS will not normally grant a change to B-2 visitor status if they believe the sole intent is to bridge the gap between the end of F-1 status and eligibility for H-1B effective October 1st. Even if the application is for F-2 derivative student status, CIS can take long periods of time adjudicate such applications which often results in complications when it becomes necessary to also file the H-1B petition. Having two petitions pending simultaneously with CIS can cause difficulty depending upon which application is adjudicated first. If the H-1B petition is adjudicated prior to grant of the F-2 or B-2 application, CIS will normally deny the change of nonimmigrant status to H-1B status because there is no evidence of maintenance of status through October 1st . This is true despite the fact there is an application pending which would resolve that problem. Thus, the end result may be denial of the request to change status to H-1B within the United States although the H-1B petition should still be approved and consulate processing remains a viable option. Even F-1 extensions for advanced studies or a double major may be imperfect solutions because they may cut-short OPT or require enrollment in courses and result in unwanted expenses related to tuition and book fees that make such approach impractical.

Although advice to any individual depends upon their particular circumstance, the best solution for most F-1 students may be to accept the proposition that they will have a gap in status that requires a departure from the United States until their H-1B visa is available through consulate processing. Hopefully, their employers will be tolerant of such periods of absence, and will welcome such former students back subsequent to October 1.

Mark S. Davidson is a partner in the Chicago-based law firm of Davidson & Schiller, where he practices immigration law. He can be contacted via telephone at (312) 499-9000; or email: msd@dsimmlaw.com. For updates on U.S. immigration law, please visit our website at www.davidsonschiller.com.

*The information provided is general information and should not be viewed as provision of legal advice regarding any individual’s situation. This document is not intended as a substitution for consultation with an attorney.