2/10/2005

Beginning from April 1, 2005, USCIS will start taking in FY 2006 H-1B cap petitions and approve the qualified H-1B petitions with the validity and effective date of October 1, 2005. The new H-1B applicants must maintain a nonimmigrant status until October 1, 2005 even if the change of status to H-1B will be approved earlier than October 1, 2005.

When H-1B cap reached earlier than the end of the fiscal year, the USCIS exercised discretion to consider the F-1 and J-1 student status extended until October 1 or until the H-1B petition was approved, as the petition was filed before certain cut off date after reaching the annual cap. Accordingly, these students did not have to worry about running out of status after the graduation or expiration of Practical Training, if they did not engage in unauthorized employment during the period.

Some of these students will experience a gap between the graduation or expiration of OPT and October 1, 2005. Those who graduated in the Spring 2004 and have been working on OPT may run into out of status even if they count the grace period of 60 days (F-1) or 30 days(J-1) after completion of the OPT. 

However, the USCIS may not exercise such discretion in this year. The affected F-1 and J-1 students should thus try to find another option to maintain his/her nonimmigrant status through October 1, 2005 after their practical training period and grace period will run out.