Clarification on STEM OPT Extension and Automatic H1B Cap-Gap Relief   Posted Apr 03, 2009
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We at the Murthy Law Firm would like to clarify questions that have come to us from students on F-1 Optional Practical Training (OPT). At issue is whether it is necessary to have an H1B petition filed by an employer in order to extend one’s OPT. The answer is no, if the request is for a 17-month OPT extension for a student with a degree in science, technology, engineering, or math (STEM). However, the answer is yes for a student who is not eligible for the STEM extension, but who is eligible for cap-gap relief: the H1B filing is required. These distinctions are explained below for the benefit of MurthyDotCom and MurthyBulletin readers.

STEM Extension : No H1B Filing Needed
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The U.S. Department of Homeland Security (DHS) issued an interim final rule on April 8, 2008, extending Optional Practical Training (OPT) for F-1 students with science, technology, engineering, or math (STEM) degrees by an additional 17 months; from 12 months to 29 months. F-1 students with STEM degrees are able to obtain this OPT extension without having H1B petitions filed on their behalf. They and their employers must meet other requirements, as explained in our April 9, 2008 NewsFlash, F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis.
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Cap-Gap Relief Needs H1B Filing
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An F-1 student with OPT and a non-STEM degree can obtain an automatic extension of status and, in some instances, work authorization based upon the filing of an H1B case. Known as cap-gap relief, this provides permission to remain in the U.S. beyond the expiration of the OPT until October 1, provided the H1B case has been accepted for processing and is either pending or approved. Additionally, if the H1B case is filed before the OPT expiration date, cap-gap relief also extends permission to work until October 1st, if the H1B case is accepted, and either pending or approved. Details on the requirements and duration of the extension can be found in our April 9, 2008 NewsFlash, F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis.
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Check Requirements from DHS Guidance
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There are some specific requirements for both extensions. Readers should carefully review the information available in the following articles on MurthyDotCom: USCIS Additional FAQs on F-1 OPT Cap Gap for Qualified Students, SEVP Guidance on Length of Cap-Gap Extension for Eligible OPT Students, and OPT Employment Options for Students.
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Conclusion
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The requirements for students, OPT STEM extensions and H1B cap-gap relief, are fairly recent, having been published in April 2008. Thus, there are still those who are confused or unclear regarding the regulations and how they work. We at the Murthy Law Firm have followed this topic closely and helpful articles detailing the requirements are available on our website. Readers will be apprised of any new information as and when it becomes available.