F-1 status is available to college students in undergraduate and graduate degree programs, English language schools and for a limited period of one year to study at a US high school.  The student may come to live with friends or relatives, or in a dormitory.

• F-1 students may not attend public elementary schools or publicly-funded adult education programs
• F-1 students may study for a maximum of 12 months in a public or private secondary school (high school), but must pay full cost of tuition if a public school

In 1996 Congress enacted a law, Section 625 of Public Law 104-208, establishing section 214(m) of the Immigration and Nationality Act, placing limitations on foreign students (F-1) attending publicly funded institutions.  A student who remains in the United States in secondary school longer than twelve months risks a five year bar to reentering the United States under INA Section 212(a)(6)(G).

F-1 students may seek off-campus employment, after completing their first academic year.  There are three types of employment:

• Curricular Practical Training (CPT)
• Optional Practical Training (OPT)
• Science, Technology, Engineering, and Mathematics (STEM) OPT

Any off-campus employment must be related to their area of study and must be authorized prior to starting any work by the Designated School Official (the person authorized to maintain the Student and Exchange Visitor Information System (SEVIS)) and USCIS.  After receiving authorization from the school, the F-1 student must apply for an Employment Authorization Document (EAD). If an F-1 student violates the conditions for working off-campus, then the student risks losing F-1 status and being deported for violating this status.

Contact Olender to discuss your employment options as an F-1 student and to be certain that you maintain your status.

The H-1B Cap Gap

On April 8, 2008, the Department of Homeland Security published a new rule permanently closing the "cap gap" by providing for the automatic extension of employment authorization for F-1 students whose F-1 status and OPT employment authorization would otherwise expire before an H-1B petition was effective.  INA § 214.2(f)(5)(vi).

The new rule provides that an F-1 student who is in F-1 status and whose OPT has not expired, or who is in the 60 day grace period following the expiration of OPT H-1B petition receives an automatic extension of F-1 status provided that USCIS receives an H-1B petition before the F-1 status including the 60 day grace period expires.  If the F-1 student's work authorization has not expired at the time USCIS receives the change of status petition, the OPT work authorization is also automatically extended until October 1 of the fiscal year in which the H-1B petition is pending. To be eligible for the F-1 cap gap extension, the student must meet the following:

1. The F–1 student is the beneficiary of an H–1B petition and request for change of status
2. The H-1B petition was received at USCIS before F-1 OPT plus the 60 day grace period expired
3. The H-1B petition requests an H-1B start date of October 1 of the next fiscal year
4. The F-1 student has not violated her status

The automatic extension of an F–1 student’s duration of status and employment authorization under 214.2(f)(5)(vi)(A) terminates immediately upon the rejection, denial, or revocation of the H-1B petition filed on the F–1 student’s behalf.  And again, while the cap gap rule automatically extends a student's F-1 status who is in the 60 day grace period when USCIS receives the petition, a student the 60 day grace period with expired work authorization at the time USCIS receives the H-1B petition does not receive a cap gap extension of OPT work authorization.  A student whose H-1B is received at USCIS during the 60 days after work authorization expires receives an automatic F-1 extension through October 1, but may not work until October 1 when her H-1B status becomes effective.

The cap gap regulations also protect F-2 dependents of F-1 students who would otherwise run out of status while waiting to change from F-2 to H-4 status.  8 USC § 214.2(f)(5)(vi)(D) provides that the automatic extension of an F-1 student’s duration of status under the cap gap rule also applies to the duration of status of any F-2 dependent aliens.

STEM Degrees and 17 Month Extensions

The same Federal Register notice provides that OPT students who complete a bachelor's, master's or Ph.D. degree in science, technology, engineering, or math (STEM) from a US college or university are entitled to an additional 17 months of optional practical training work authorization.  This means a total of 29 months of work authorization for OPT students who meet the STEM requirements.  OPT students seeking STEM extensions must file to renew their work authorization using form I-765.  There is no grace period.  If the existing employment authorization document expires, the student must cease working until the new employment authorization card is approved.