July 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.

BAL Comment: 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.

NOTE: 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.

Federal Register Notice