Klasko, Rulon, Stock & Seltzer, LLP: Blog » F-1

USCIS Issues FAQ on Extension of OPT and F-1 Status under the H-1B Cap-Gap Regulations

kkalmykov@klaskolaw.com — Mon, 04 Apr 2011 23:16:18 +0000

USCIS issued an FAQ today that discusses the automatic extension of post-completion Optional Practical Training (OPT) and F-1 status in the U.S. for students with pending or approved H-1B petitions for an employment start date of 10/1/11, under the Fiscal Year 2012 H-1B cap.

NY State Court Holds that Student Violated Status by Working at a Different Campus

Jennifer Hermansky — Thu, 11 Mar 2010 03:01:14 +0000

On February 5, 2010, the Supreme Court, Appellate Division, of New York held that an F-1 student violated his status by tutoring at another campus location of the university that he attended. The student was pursuing a Master’s degree at the State University of NY at Binghamton. While attending school at the Binghamton campus of SUNY, he also tutored students attending the State University of NY at Morrisville, some 70 miles away. The student argued that he was engaging in “on campus” employment, which is allowed under the regulations found at 8 CFR §214.2(f)(9)(i). That regulation requires the employment must be performed on the school’s campus or at an off-campus location that is “educationally affiliated with the school.”

The court found in favor of the school. The court rejected the student’s argument that tutoring at the Morrisville campus was “on campus” employment because both campuses were part of the SUNY network. Specifically, the court stated that “the tutor position could not have been on-campus employment as SUNY Morrisville – the place where petitioner was employed – is located almost 70 miles from the SUNY Binghamton campus.” The court also found that the student’s tutor position “does not appear to have any educational affiliation with SUNY Binghamton’s curriculum in a manner contemplated by these regulations.” The court recognized that both schools were in the SUNY network, but that they are “separate and distinct educational institutions with differentiated and designated missions.”

Klasko reminds students that they always check with their designated school official (DSO) prior to accepting off-campus employment in order to maintain valid F-1 status.

A copy of the decision can be read at: decisions.courts.state.ny.us/ad3/Decisions/2010/507473.pdf

Guidance for Students transitioning to H status

wstock@klaskolaw.com — Tue, 31 Mar 2009 17:40:49 +0000

Immigration and Customs Enforcement (ICE) has a helpful new fact sheet for F-1 nonimmigrant students whose Optional Practical Training will expire before October 1, 2009, and employers filing H-1B petitions today on behalf of those students. The guidance explains the “cap gap” in employment authorization as well as how to get the benefit of the rule.

In summary, an F-1 student with OPT work authorization expiring between April 1, 2009 and October 1, 2009, is authorized to work (but not travel) for so long as an H-1B petition seeking a change of status on his or her behalf is pending. If the H-1B petition is rejected because it was not selected for the lottery, work authorization ends. If the petition does not request a change of status, there is no “cap gap” protection.

Eligible students must contact their school to have an amended I-20 issued, but do not need to get a separate employment authorization document from USCIS.