FAQ on OPT and F1 Status for Students under H1B Cap-Gap

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?
A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
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Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?
A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?
A7. That is correct. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?
A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?
A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

• The student finds employment appropriate to his or her OPT
• The period of OPT is unexpired; and
• The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?
A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Last updated:04/01/2011

Source - USCIS

Admission Application Tracker - For Graduate and Undergraduate Students

We have released new admission application tracker for graduates and undergraduates. Please use this tracker to enter details of your application to schools and universities in US. Please fill in as much details as possible and edit the tracker as and when you will get more information on your application status. Use this tracker also to see what score would you get you into which schools.

Please see "Undergraduate and Graduate Admissions Application Tracker"

H1B 'Cap Exempt' Visa as an Option?

Most of the international students after graduation would focus their attention to find a job in corporate world. But it is always difficult to find an employer who will be ready to sponsor your H1B visa. If you are lucky, you may find an employer who is willing to sponsor your work visa, but could not do it because quota is not available at that time or if quota is open, is worried that he may have to wait until start of fiscal year in October before you could begin working for him. What are other options in such case? Well in this case, you can opt for working for organizations that are exempted from H1B visa regular cap quota.

What is H1B ‘Cap Exempt’ Visa?

The "cap exempt" provision of the H1B visa program allows certain US companies and organizations to employ an unlimited number of H1B workers and apply for H1B's at any time of year.

Cap exempt H1B's are available for ALL types of H1B jobs and positions.

This is a great way to find sponsorship jobs and apply for H1B visas all year round. This way you can get your foot in the door and get your first H1B.Once you have an H1B you can then transfer it to a new employer (from cap exempt to cap subjected quota is little tricky). Cap-exempt is not quota limited or restricted the same way as the regular H1B quota. This way you can file for H1B's and start work in the USA at any time of year.

Who can sponsor H1-B ‘Cap Exempt’ visas?

The USCIS states that petitions (applications) for new H1B employment are exempt from the cap if the applicant will work at the defined institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H1B categories regardless of H1B visa number availability.

Petitions filed on behalf of current H1B workers do not count towards the congressionally mandated H1B cap. Accordingly, this rule does not affect USCIS processing of petitions filed to:

• Extend the amount of time a current H1B worker may remain in the United States
• Change the terms of employment for current H1B workers;
• Allow current H1B workers to change from one cap-subject position to a different cap-subject position with a different employer
• Allow current H1B workers to work concurrently in a second H1B position.
  

What are advantages of H1B ‘Cap Exempt’ visas?

Unlike the Regular H1B visa , ‘Cap Exempt’ visas

• No annual numerical limit
• No set filing dates
• No set employment start dates

What types of H1B Jobs are available within non-profit Organizations ?

Non profits organizations are varied and in their business nature and markets - Non profits have all types of business departments (IT, finance, marketing, sales etc etc - and All types and levels of jobs are typically available.

GRE 2011 - Change in Format

With start of year 2011, we would like to remind our student community aspiring for admission to graduate schools, ETS will be changing the format for GRE Examination starting August 2011.

The Calculator: good or bad?

This new feature introduced by ETS looks very exciting at first view. The calculator will surely help the students in Problem Solving and Data Interpretation questions. This will make the calculations much easier, but not the overall test.

With the new format in-place, it is expected that a new question pattern will be introduced that will have lengthier calculations. Also, the answers to questions from some topics like Permutations and Combinations, Probability and Algebra, whose answers were left in nCr, factorial or sqrt form will have to be solved completely to match the options!

Advice – Start practicing questions with higher difficulty level. Use New GRE softwares (with calculators) to practice questions. You can practice questions from TopGrecoaching.com with Microsoft-Windows On-screen calculator.


Changes in Problem solving problems: Practical problems
ETS has constantly been putting efforts to make the test more practical. The new model of the paper will provide it with further more freedom to put in more practical questions. But what difference does it make to a test taker??
Take a look at the following example:-


Question Text:
There are two trains A and B of same lengths. Each starts simultaneously in the opposite direction from two different cities C and D on same track. The two trains meet at a point E. They arrive at their destinations 9 and 4 hours respectively after their meeting each other at E. Assuming that the trains travel at uniform speed and do not stop in between, at what rate does the second train B travels if the first train travels at 80 km per hour?


Answer Explanation:
We form that VA/VB = ?tb/ta
VA/VB = ?9/4 = 3/2
VA = 3/2 x 80 = 120 km/hrs.
To be deleted-(Source: edited question from-http://www.topcatcoaching.com/admin/cms/showQuestion/0/7202/188/107/168 )
The above question is a simple Time-Speed-Distance question. The solution is small. But the practical aspect introduces lots of redundant information and makes the question difficult to comprehend. The questions will further increase in length and complexity of details, though the amount of mathematical calculations needed would remain same.
Advice - Do not skip lengthier questions while practicing. Practice more question on – Time-Speed-Distance, Probability, and Set theory. Avoid direct equation based questions.


Changes in Verbal Ability Section: - More emphasis on Cognitive abilities.
ETS intends to bring more ‘thinking’ into the exam pattern. Earlier the RC questions on GRE were relatively direct and simple. With this new pattern in place, we can expect more of the following types:-

• Inference based questions
• Conclusion based
• Point of view of Author
• Author will support which of the following
• Main Idea of the passage
• Reasoning based questions
• Summary based questions
• Assumption based questions

The answers to above questions require relatively better understanding of passage.


Advice
Read the passage thoroughly.
Do not skim the passage. While reading the passage, take note of changes in author’s style and tone, carefully analyze the turns caused by words, such as – Although, Unfortunately, Sadly, In spite of, likely, etc. Majority of the questions will lie around them.


Changes in Analytical Writing (AWA): - More focused
Again, more cognitive ability is expected from the students. The ETS will be more strict while evaluating the responses in GRE AWA. Students would be expected to write more direct and focused essays. In short, no stories and no out-of-the-topic content.

Your answers should reflect your analytical writing skills, which includes reasoning abilities, critical reasoning and logical reasoning.


Advice
1. Read the Topic carefully and give a good thought before start writing.
2. Try to analyze both pros and cons of the topic; they will reflect your reasoning abilities.
3. Your examples should be more relevant and appropriate to the context.
4. Write a clear and direct introductory paragraph, showing your clarity of the topic

Start Preparing for the Launch in 2011. Here Are Important Dates You Need to Know:

Table with important dates about the GRE revised General Test

MONTH	MILESTONE
2010
JULY	Free test prep available to test takers
2011
AUGUST – SEPTEMBER	August 1: First day of testing for revised test For tests administered in August – September, scores will be reported starting in early November
OCTOBER	For tests administered in October, scores will be reported starting in mid-November*
NOVEMBER	For tests administered in November, scores will be reported starting in late November*
DECEMBER	Score reporting returns to the regular reporting period (10 – 15 days after test date)*

Dates reflect scores sent through SCORELINK® Internet Delivery Service. Scores reported on paper reports will be sent approximately one week later. Check back for a more detailed reporting schedule in early 2011.

*Score reports for paper-based administrations will continue to be reported six weeks after test date.

Source : http://www.topcoaching.com/ and http://www.ets.org

DHS Updated F.A.Q on 90–day unemployment rule for OPT students

Recently question was asked by a poster if 90 day unemployment rule on OPT is only applicable to 27 month OPT. Answer is 'NO'. The total time spent without a qualifying job during post-completion OPT. Except as noted in the section on "what counts as time unemployed" (see below), each day that the student is not employed in a qualifying job is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT, including those with a cap gap extension, except that students with an approved 17-month extension are given an additional 30 days of unemployment time for a maximum of 120 days.

As per updated document released by DHS, it made changes to post-completion optional practical training (OPT) that was effective immediately with publication. The IFR included explanation of the purpose for these changes and the reasons for its immediate implementation.

This update does the following:

• Provides current dates related to H-1B petitioning for 2010 (and removes information related to previous years.

• Amends the text to past tense, as applicable.

• Replaces the term “OPT STEM extension” with “17-month extension.” Classification of Instructional Program (CIP) codes for all science, technology, engineering and math (STEM) are the universe for those CIPs that are approved by DHS for the 17-month extension. However, DHS does not approve all STEM CIPS for the extension.

• Deletes reference to the public comment period for the IFR, which has closed (section 1.2). Adds text related to school filing of courses of study for CIPs, for STEM designation of CIPS and for DHS approval of STEM CIPS for the 17-month extension of OPT (section 1.3). Adds text on other resources available related to the IFR (section 1.4)

• Refines procedures for filing for OPT after the program end date (section 5.2)

• Deletes 10 day exceptions to the time that counts for unemployment during OPT at the EAD start date and between jobs. SEVP will need approval for such exceptions through another proposed rulemaking. (sections 7.1.6 and 7.1.7)

• Removed restriction that employment during the 17-month extension must be paid employment. SEVP will need approval for such a restriction through another proposed rulemaking. (sections 7.2.2 and 7.2.3)

• Deletes dates for wait-listing for this year. SEVP has been notified by U.S. Citizenship and Immigration Services (USCIS) that there will not be a waitlist utilized as a part of the FY 2011 H1B Cap filing process (section 9.1.1);

Unemployment time

The total time spent without a qualifying job during post-completion OPT. Except as noted in the section on what counts as time unemployed, each day that the student is not employed in a qualifying job is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT, including those with a cap gap extension, except that students with an approved 17-month extension are given an additional 30 days of unemployment time for a maximum of 120 days.

LIMITS ON PERIODS OF UNEMPLOYMENT DURING A PERIOD OF AUTHORIZED OPT

Limits on periods of unemployment

What are the limits on periods of unemployment?

Students on post-completion OPT may have up to 90 days of unemployment.

Students who have OPT extended due to the cap gap provisions continue to accrue unemployment time and are subject to the 90-day limit on unemployment.

Students who receive a 17-month extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.

Do the limits on unemployment apply to any periods of unemployment prior to April 8, 2008?

No, the limits on unemployment do not apply retroactively.

Do the limits apply to students who had post-completion OPT approved before April 8, 2008?

For students who started post-completion OPT prior to April 8, 2008, unemployment time accrues only for time spent unemployed after April 8, 2008. Time unemployed prior to April 8, 2008, will not be counted.

Is a student who splits OPT between two degrees at the same education level limited to a total of 90 days of unemployment?

No, the student is not limited to a total of 90 days of unemployment in this case. For each new period of post-completion OPT, the student will have the full 90-day period of unemployment.

How many hours does a student need to work per week during post-completion OPT (including the 17-month extension) to be considered employed?

A student must work at least 20 hours per week in a qualifying position to be considered employed. If a student has a variable schedule, within a month, it should average out to at least 20 hours per week.

What counts as time unemployed?

Each day (including weekends) during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. OPT authorization begins on the employment start date shown on the student’s EAD.

[NEW AND/OR REVISED]

If a student does not receive the approved EAD, the missing EAD is not returned to the USCIS Service Center, and the student applies for a replacement EAD, when does the student begin accruing unemployment?

The “clock” for unemployment starts after issuance of the replacement EAD by USCIS.

[NEW AND/OR REVISED]

How does travel outside the United States impact the period of unemployment?

Time spent outside the United States during an approved period of post-completion OPT counts as unemployment against the 90/120-day limits, unless the student is either:

Employed during a period of leave authorized by an employer; or

Traveling as part of his or her employment.

Employment allowed while on OPT

What types of employment are allowed for regular pre- and post-completion OPT?

All OPT employment, including post-completion OPT, must be in a job that is related to the student’s degree program.

For students who are not on a 17-month extension, this employment may include:

· Multiple employers. A student may work for more than one employer, but all employment must be related to the student’s degree program and, for pre-completion OPT, can not exceed the allowed per week cumulative hours.

· Short-term multiple employers (performing artists). A student, such as a musician or other type of performing artist, may work for

· Multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration.

· Work for hire. This is also commonly referred to as 1099 employment, where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by DHS, the student must be prepared to provide evidence showing the duration of the contract period and the name and address of the contracting company.

· Self-employed business owner. A student on OPT may start a business and be self-employed. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student’s degree program.

· Employment through an agency or consulting firm. A student on post-completion OPT must be able to provide evidence showing he or she worked an average of at least 20 hours per week while employed by the agency.

· Paid employment. A student may work part time (at least 20 hours per week when on post-completion OPT) or full time.

· Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.

[NEW AND/OR REVISED]

What types of employment are allowed for students during a 17-month extension of OPT?

A student authorized for a 17-month extension must work at least 20 hours per week for an E-Verify employer in a position directly related to his or her DHS-approved STEM CIP. For a student who is on a 17-month extension, this employment may include

Multiple employers : A student may work for more than one employer, but all employment must be related to his or her degree program and all employers must be enrolled in E-Verify.

Work for hire. This is also commonly referred to as 1099 employment, where an individual performs a service based on a contractual relationship rather than an employment relationship. The company for whom the student is providing services must be registered with E-Verify. If requested by DHS, the student must be prepared to provide evidence showing the duration of the contract period and the name and address of the contracting company.

Self-employed business owner. A student on a 17-month extension can start a business and be self-employed. In this situation, the student must register his or her business with E-Verify and work full time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to his or her degree program.

Employment through an agency or consulting firm. A student on a 17-month extension may be employed by an employment agency or consulting firm. The employment agency or consulting firm must be registered with E-Verify, but the third parties contracting with the agency or firm (for which the student is providing services) need not be.

[NEW AND/OR REVISED]

Can a student work multiple jobs during a 17-month extension of OPT?

Yes, but all the employers must be enrolled in E-Verify.

How does a student show that employment is directly related to his or her degree program?

SEVP recommends that the student maintain evidence for each job documenting the position held, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager, and a description of the work.

If it is not clear from the job description that the work is related to the student’s degree, SEVP recommends that the student obtain a signed letter from his or her hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.

Reporting employment and unemployment (other than students with a 17-month extension)

What should a student report to ensure that his or her status does not expire due to excessive unemployment time?

The student should report changes in employment to his or her DSO as soon as possible. SEVP recommends that the student report any change within 10 business days of the change to avoid situations where a DHS official may determine the student is out of status.

The following table suggests the best way to report employment or a change in employment.

19 SEVP Policy Guidance 1004-03 Update to Optional Practical Training Situation	Report
New job	Name of the employer Start date of employment Mailing address for the employer
Change to a new job	Name of the previous employer Ending date of the employment with the previous employer Name of the employer Start date of employment Mailing address for the employer
Multiple short-term gigs in one period with less than 10 days between gigs	Report at the beginning of the first gig and indicate “Multiple short term gigs”
Work for hire (start)	Indicate “Self-employed work for hire” Indicate the start date of the contract
Work for hire (ending more than 10 days between the end of one contract and the beginning of another contract or a new job)	Indicate “Self-employed work for hire” Indicate you have no current contract Ending date of the last contract worked
More than 10 days of unemployment	Indicate “unemployed” Ending date of last job
Self-employed business owner (start)	Indicate “Self-employed business owner” Indicated date went into business
Self-employed business owner (end)	Indicate “Self-employed business owner” Indicate date business closed or student no longer worked for the business full time

Consequences of exceeding the period of unemployment

How should a DSO advise a student who is close to reaching the limit on authorized unemployment?

The DSO should advise the student of the options available upon reaching the limit and on the potential problems associated with violating status by exceeding the period of authorized unemployment. To avoid violating status, prior to reaching the limit on authorized unemployment the student should prepare to transfer to another SEVP-certified school, change education level, depart the United States, or take action to otherwise maintain status in the United States.

What is the effect on a student’s status if the student exceeds the period of unemployment?

A student who has exceeded the period of unemployment while on post-completion OPT has violated his or her status unless he or she has taken one of the following actions:

Applied to continue his or her education by a change of education level or transferring to another SEVP-certified school

Departed the United States Taken action to otherwise maintain legal status

Is a DSO responsible for determining if a student has exceeded the limit of unemployment time while on OPT?

No, a DSO is not responsible for calculating unemployment time or taking action in SEVIS based on unemployment time. If a student’s SEVIS record remains in Active status and the student has otherwise maintained F-1 status, the DSO should consider the student in status and act accordingly.

DHS maintains responsibility for determining whether a student has violated his or her status by exceeding the permissible limit on authorized unemployment.

How will DHS enforce this provision?

A student may be denied future immigration benefits that rely on the student’s valid F-1 status if DHS determines that the student exceeded the limitations on unemployment.

Additionally, ICE/SEVP may examine SEVIS data for an individual, a selected group or all students on post-completion OPT and terminate a student’s record if it fails to show that the student maintained the proper period of employment. In such cases, the student will be given an opportunity to show that he or she complied with all OPT requirements, including maintaining employment.

Document on Tax Exemption for OPT Students and Students on F1B visa

In response to question asked by few posters on document or proof stating that OPT students are not required to pay Social Security Taxes and Medicare tax, please see document excerpt and link to the document below. You can share it with your employer. Please note even if you are on OPT, your non-immigrant status is F1B.

As per IRS site these are the following excerpt

Social Security and Medicare Taxes:

If you work as an employee in the United States, you must pay social security and Medicare taxes in most cases. Your payments of these taxes contribute to your coverage under the U.S. social security system. Social security coverage provides retirement benefits, survivors and disability benefits, and medical insurance (Medicare) benefits to individuals who meet certain eligibility requirements.

In most cases, the first $106,800 of taxable wages received in 2009 for services performed in the United States is subject to social security tax. All taxable wages are subject to Medicare tax. Your employer deducts these taxes from each wage payment. Your employer must deduct these taxes even if you do not expect to qualify for social security or Medicare benefits. You can claim a credit for excess social security tax on your income tax return if you have more than one employer and the amount deducted from your combined wages for 2009 is more than $6,621.60. Use the appropriate worksheet in chapter 3 of Publication 505, Tax Withholding and Estimated Tax, to figure your credit.

If any one employer deducted more than $6,621.60, you cannot claim a credit for that amount. Ask your employer to refund the excess. If your employer does not refund the excess, you can file a claim for refund using Form 843

In general, U.S. social security and Medicare taxes apply to payments of wages for services performed as an employee in the United States, regardless of the citizenship or residence of either the employee or the employer. In limited situations, these taxes apply to wages for services performed outside the United States. Your employer should be able to tell you if social security and Medicare taxes apply to your wages. You cannot make voluntary payments if no taxes are due.
Students and Exchange Visitors :

Generally, services performed by you as a nonresident alien temporarily in the United States as a nonimmigrant under subparagraph (F), (J), (M), or (Q) of section 101(a)(15) of the Immigration and Nationality Act are not covered under the social security program if the services are performed to carry out the purpose for which you were admitted to the United States. This means that there will be no withholding of social security or Medicare taxes from the pay you receive for these services. These types of services are very limited, and generally include only on-campus work, practical training, and economic hardship employment.

Social security and Medicare taxes will be withheld from your pay for these services if you are considered a resident alien as discussed in chapter 1, even though your nonimmigrant classification (“F,” “J,” “M,” or “Q”) remains the same.

Services performed by a spouse or minor child of nonimmigrant aliens with the classification of “F-2,” “J-2,” “M-2,” and “Q-3” are covered under social security.

Nonresident Alien Student :

If you are a nonresident alien temporarily admitted to the United States as a student, you generally are not permitted to work for a wage or salary or to engage in business while you are in the United States. In some cases, a student admitted to the United States in “F-1,” “M-1,” or “J-1” status is granted permission to work. Social security and Medicare taxes are not withheld from pay for the work unless the student is considered a resident alien.

Please point your employers to this link from IRS and see section "Social Security and Medical Taxes". Remember this hold only if you are considered non-resident alien for tax purposes. Social security and Medicare taxes will be withheld from your pay for these services if you are considered a resident alien as discussed in chapter 1, even though your nonimmigrant classification (“F,” “J,” “M,” or “Q”) remains the same.

Definition of Resident Alien :

Resident aliens generally are taxed on their worldwide income, similar to U.S. citizens.To be classified as a resident alien, the individual must meet one of two tests:

Green Card

A non-resident alien is a lawful permanent resident of the U.S. at any time if they have been given the privilege, according to the immigration laws, of residing permanently as an immigrant. This status usually exists if the Bureau of Citizenship and Immigration Services has issued a green card.

Substantial Presence in US

A non-resident alien is classified as a resident alien for tax purposes if they were physically present in the U.S. for 31 days during the current year and 183 days during a three-year period that includes the current year and the two years immediately before that.

Bill gives in-state tuition to foreign professionals, families in Washington on H1B visa

A little-noticed measure passed by the Legislature and signed into law by the governor will extend in-state tuition rates at Washington state colleges and universities to foreign professionals at companies such as Microsoft and Amazon, as well as to their children and spouses.

Under House Bill 1487, which takes effect July 1, the foreign workers would qualify for the same tuition rate as state residents if they have been in the state at least a year on certain kinds of temporary work visas, such as the H-1B.

The measure passed amid a roiling budget crisis and hundreds of millions of dollars in cutbacks to higher education. It was nicknamed the "Microsoft subsidy bill" by some lawmakers who say the software giant and its workers surely could afford to pay the higher tuition rates.

Subject to lively legislative debate, the bill received little attention outside the Capitol. An analysis put the immediate tuition revenue loss at the University of Washington at about $430,000, with potential for bigger losses in future years, and about $215,000 at Washington State University.

State Rep. Ross Hunter, D-Medina, the bill's sponsor, retired from Microsoft in 2000 after 17 years. He said employers in his Eastside district sought the provision as a tool for recruiting foreign talent.

"There are a bunch of people in my district who are in this situation," said Hunter, who is running for King County executive.

The bill passed the House 59-38 and the Senate 31-13.

Lydia Tamez, associate general counsel and director of global migration at Microsoft, said it would allow Washington to attract and keep talented foreign professionals and to compete with about 13 other states, including Oregon, that already offer tuition breaks to foreign workers.

Microsoft has thousands of workers who may qualify.

The company said spouses of the visa holders often cannot work legally in the U.S., leaving the costs of college classes or pursuing a college degree to be borne on a single income.

"These are people who are here lawfully, and are going to be here for a long period of time," Tamez said. "It makes it affordable for workers who are your neighbors, pay taxes, buy homes and whose kids hang around with your kids to possibly earn a second degree at night."

A state resident who is a full-time undergraduate at UW will pay $7,677 in tuition and basic fees next year, compared with $24,352 for a full-time nonresident student. Read Full Article ...

Senators Durbin-Grassley: When will we get our Reform Bill?

Senator Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) introduced the H-1B and L-1 Visa Reform Act last month–that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

Senator mentioned in their bill that they would mend H-1B visa program, not end it, while making reasonable reforms that will not reduce H1Bs which are available. Bill talks about amending H1-B and L1-B visa programs. Some of the key requirements of the bill are

• Require all employers who want to hire an H-1B guest-worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers.

• Prohibit the blatantly discriminatory practice of “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders.

It is rational by all means that Senators want to protect American workers and would like to prevent abuse and fraud that take place at some companies, especially the one which relates to replacing American worker group. But Senators should note that DOL is already getting tough on scrutinizing LCAs from petitioners and USCIS would not approve cases unless petitioner is clean. So DOL/INS is already working on overcoming some loopholes. This bill would not add anything to what DOL/USCIS is currently working on. There is no need of such amendment in the system when steps are already taken. This bill will do nothing but restrict employer from hiring skilled workers to avoid unnecessary audits and paperwork.

If Senator’s main objective behind such bills is to overcome the loopholes in H-1B and L1-B visa program, then there are other ambiguities in the program that should be addressed. Some of these ambiguities are:

• H1-B and L1-B workers pay Social Security and Medicare taxes every year. Once skilled worker leaves the country, not an iota of this tax is returned, but rather goes into Federal Reserve. Program calls for immediate reform to amend the system that will allow returning skilled worker to withdraw their contribution. These taxes should be returned fully, or at least some percentage should be available to withdraw. This could be based on number of years skilled worker was in the country.

• L1-B program allows dependents to obtain EAD and work full-time while the principal beneficiaries are in the country. Such amendment should be added to H1B program as well. Spouses of these skilled workers are well educated and could contribute to American economy. Currently spouses (H4 visa beneficiary) either have to give up their career to accompany the principal beneficiary or have to wait long time till they could find a petitioner to file their work visa to join them. Amendment in the program could also be achieved by counting these dependents towards small amount of H1B visa number cap, and their case being approved depending on individuals skill set. DOL could also issue H4 visa approved skilled occupations by which they will qualify for some visa numbers.

• H1-B worker when laid off, has only 2 weeks to find a new job that will transfer their H1-B visa. Unsuccessful to find a job, they become out of status and have to leave the country in 10 days. Country allows Americans to collect unemployment benefits for 33 weeks (46 weeks with a new rule), assuming that individual will take at least 33 weeks to find a new job. Similar time period should be provided for skilled workers as long as he/she has valid 3 years on his/her visa left. It is totally impractical to find a new job in 2 weeks.

• Most of the skilled worker visas are utilized by Computer/IT/Software engineers. System calls for different visa-type for such workers. H1B visa should only be available for other occupations. Cap on H1B visa could be reduced if new form of visa will be available of Computer/IT/Software workers.

• Employment based green card program should have quota based on occupation (Science, Technology (IT), Engineering, Mathematics, Business, Management, Healthcare and so on) and not based on countries. For America to prosper, it need skilled workers based on their qualification and not based on race. DOL/DHS could issue occupation pressure list every month, thus making quota current and unavailable as per need.

There is an acute need to have aforementioned reforms in the system. When will we see such amendments or bills from these Senators that will benefit skilled worker class? Or as said by various source, all we should expect from them is more xenophobic legislation?

Students on OPT: Tips for Finding Job After Graduation

If you are on OPT after graduating from an American university and currently actively looking for a job, you may find this post helpful. In recent years after talking to many friends and colleagues overtime, I have found that it is not easy to get an entry-level job. Especially if you are an international student, life gets more tough. With new 90-day unemployment rule, finding job is a challenge. One would have to apply for many jobs daily, even to get a single call from a Recruiter. I have found that many individuals will randomly apply for a job which they come across online job-board like Monster, dice, Hotjobs or Careerbuilder. Some applicants would not even bother to send a cover letter with their applications.

Here are few steps that are recommended if you are applying for a job.

1. Always prepare a cover letter defining your qualification, skills (technical, research or teaching) and brief summary on how you obtained them during different employment you held. Do not make an unique cover letter. Make sure every cover letter outlines work that will complement the job requirement.
2. Resumes and application forms give employers written evidence of your qualifications and skills. The goal of these documents is to prove—as clearly and directly as possible—how your qualifications match the job’s requirements. Do this by highlighting the experience, accomplishments, education, and skills that most closely fit the job you want.
3. Screen through the job requirement and see if recruiter or hiring manager has mentioned a contact email address or a phone number. Your resume will reach right people soon if you will email them than applying online.
4. Spend some time on working on Steps 1 to 3 and once you are convinced that you have a good case then apply for the job. Apply few jobs but make sure that Resume and content that you submit is qualitative and not quantitative.
5. Most of the people get jobs through networking. Try joining Linkedin, Alumni network at your school or other networking sites. Join different groups at these networking site. Talk to your Professors. Go to different networking events in your city.
6. Most of the students will end up getting their first job locally. Screen through craigslist or local newspaper. Check your university's career website regularly. See when your university and neighboring universities are holding a career fair.
7. Lastly, start searching for job well in advance from your graduation. If possible, try getting an Internship or Co-op during summer. You are most likely to end up with a full-time job with the same company.

If you will follow aforementioned steps, you are more likely to get a call from Recruiter. Other issue that international student face even after following above steps is company will not consider them, even being perfect match. The reason being company will not file H1-B for individuals future employment. To overcome this, usually I will not apply jobs with companies that do not have history of filing H1Bs, unless I am close to the best match they are looking for. To search for the companies that hire H1B holders in your field, please visit this website. Most of the companies that do not have history of filing H1Bs would immediately turn you down since they do not want to go through the hassle of filing H1B in April or would not like hiring lawyers for your case. In addition, it also cost them $4000 above your base pay. There are few small companies who have never even heard of H1B work visa.

Laid Off: Planning to go from H1B - F1B?

Recently many H1-B holders, who have been laid off are having tough time to find employers, who will transfer their H1-B and offer them job. These individuals are now taking the opportunity to go back to school and earn new skills. To transfer from worker visa to student visa, one would have to change their status from H1-B to F1-B.

Here are few things that one should remember if he/she decides to go back to school. To transfer your H-1B to F1-B, one will need recent pay stubs. Generally, USCIS will accept pay stubs dated within 30 days before filing as proof of maintenance of status for the purposes of a change of status/extension of stay petition. If you don't have this, you likely would not be approved to change status in the U.S.

This does not mean that you aren't eligible for an F-1B if accepted into a qualifying program, it just means that the only way to get into F-1B status would be to leave, obtain the F-1 stamp at the consulate abroad, and re-enter. However, an F-1 visa requires non-immigrant intent - the intent to return abroad at the completion of your program. It isn't a dual intent visa like the H-1B which also allows one to migrate to US. If you ever applied for a green card while here on H-1B, this could be a problem for the F-1B application. Even a long time spent here or home ownership here might be problems. So please be careful if you will decide to go this route.

In latter case, if you showed an intent to immigrate to US, you are more likely to get your change of status rejected. Even if your case is accepted as a "change of status" approved, and later sometime if you will decide to get your F1-B visa stamped, there are chances that your visa will be rejected with 221(g) or as a 'Potential Immigrant'.

Of course, applying for F1-B once you have fallen out of status carries it's own issues. If your H-1B has expired or revoked, you probably have been accruing unlawful presence so as to be subject to a re-entry bar and denial.

Durbin-Grassley H1B Visa Reform Bill: Do We Need it?

U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) introduced "The H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007" late last week to overhaul the H-1B and L-1 visa programs to give priority to American workers and crack down on unscrupulous employers who deprive qualified Americans of high-skill jobs.

The H-1B visa program allows American companies and universities to employ temporary foreign workers who have the equivalent of a U.S. bachelor's degree in a job category that is considered by the U.S. Citizenship & Immigration Services to be a "specialty occupation". The L-1 visa program allows companies to transfer certain employees from their foreign facilities to their U.S. facilities for up to seven years.

"Our immigration policy should seek to complement our U.S. workforce, not replace it," Durbin said. "Some employers have abused the H-1B and L-1 temporary work visa programs, using them to bypass qualified American job applicants. This bill will set up safeguards for American workers, and provide much-needed oversight and enforcement of employers who fail to abide by the law."

"This is about protecting the American worker," said Senator Grassley. "We're closing loopholes that employers have exploited by requiring them to be more transparent about their hiring and we're ensuring more oversight of these visa programs to reduce fraud and abuse. A little sunshine will go a long way to help the American worker."

Now Senate is not only looking into abuse of H1B, but have also started taking close look at L1 visa. With Senate requesting tougher scrutinizing of worker visas, soon we will see many companies refraining from hiring skilled workers to avoid unecessary hassles.

Senators should understand when a company hires a H1B visa holder, they have to spend almost $4000-$5000 (filing and lawyer fees) in addition to the base pay they offer to the prospective employee. A company would not invest in an individual unless they are not able to find right candidate. The one reason companies usually do not get skilled workers is because two third of the US population are not ready to move across a county or state line. In the 21^st century, there has been only 25 percent increase in people living in a state other than the one in which they were born (Source: U.S. Census Bureau Online). Thus there are less number of right candidates available in and around the city of interest. On other hand, non-immigrant foreign skilled workers are willing to move across the state for the right jobs as they are motivated to fulfill their American dreams.

If above bill is passed in Senate, it will make America globally less competitive. Many skilled workers would start looking at other European countries. These countries would love to have skilled workers to have edge over their counterpart. Many countries have already requested World Bank to define a unified currency to measure world economy than depending on America only. If this would happen America could lose their niche in the world.

On other hand, Foreign students and workers who might prefer to stay in the US can, and increasingly will, also return to their home countries to launch businesses. They can then compete with American companies instead of adding value to them. And when they return home, they can honestly say that America is not the land of opportunity for people like them.

The H-1B program is very small in relative numbers (new H-1B visa holders represent just 7 out of every 10,000 workers in the United States, according to the National Foundation for American Policy). It is difficult to understand why is it always a reason of worry among Senators? Or they just want someone to take the blame for the country's economic crisis and rise in unemployment rate.

Provisions of the Durbin-Grassley bill would change existing law in the following ways