Immigration Attorney
Services & Fees

07/23/2004

The U.S. Citizenship and Immigration Services (USCIS) today published a notice in the Federal Register that extends the duration of status of F students and J exchange visitor students who have applied for change of status to H-1B but whose status expires before October 1, 2004.

The notice extends their status if the USCIS receives a timely-filed request for change of status to H-1B by next Friday, July 30, with a start date of no later than October 1. For the student to qualify under the terms of the notice, the H-1B petition must have been filed before the nonimmigrant's authorized stay expired. Generally, F-1 status is valid for 60-days beyond the last day of F-1 optional practical training employment authorization.

The purpose of this extension was to resolve a problem created by the H-1B cap, which limits the number of H-1B visas that can be issued in a single fiscal year. Since the cap for FY 2004 was reached earlier this year and no new H-1B visas are available until October 1, 2004, many students who were engaged in optional practical training that expired more than 60-days prior to October 1, 2004 have been unable to change their status to H-1B.

The lawful status of students in this circumstance would have expired and they would have had to leave the U.S. and apply for an H-1B visa at a U.S. consulate abroad before being able to return to the US.

This new regulation provides a miniscule one-week window within which people in this situation can apply for a change of status and avoid an unwanted trip out of the United States.

Some F-1s have had H-1Bs approved, but the change of status denied prior to publication of this notice. Unfortunately, issuance of the notice does not affect a previous change of status denial, unless another H-1B petition is filed before July 30 (and it is approved by October 1).

Also, the notice does NOT permit the H-1B change of status applicant to work during the period between the expiration of the period of practical training and the October 1, 2004 effective date of the approved H-1B status. It simply provides a means to effect a change of nonimmigrant status and avoid needing to depart from the United States.

The notice is limited. For example, the H-1B petition must be received by the CIS (not filed) by July 30. Since it can take a CIS service center several days to receipt in a case, this means that there is only a short window of time to file an H-1B petition if one has not been filed already. For that reason the notice really only benefits H-1B petitions that have already been filed and are currently pending.

The notice does not address what the CIS will do about change of status requests that have already been denied. AILA is seeking further guidance from the CIS on that point.