John Valdez’s Legal Blog

Every once in a while, a little good luck finds its way to immigrants.  On April 18, 2008, F-1 students seeking H-1B visas received a pleasant surprise when the USCIS announced that it would allow student winners of the H-1B lottery to request a change of status instead of leaving the country for consular processing.

In recent years many students applying for H-1B status suffered from a “gap” in their authorized stay and the start date of H-1B employment.  Under the regulations, a nonimmigrant cannot apply for H-1B classification more than six months before the start of employment.  In recent years, to have any chance of getting H-1B classification under the numerical cap, employers had to submit a petition for H-1B classification on behalf of a nonimmigrant during the first week of April, six months before the government’s new fiscal year, which starts on October 1st.   Otherwise, H-1B numbers would be exhausted before their petitions were received.  

The problem for students applying for H-1B classification on April 1st is that many do not have F-1 status until October 1st, when their H-1B classification would begin.  This situation caused a “gap” problem.  In recent years, this gap problem resulting in many students leaving the United States to avoid illegal status during the gap.  Moreover, the USCIS would not honor a request for a change of status, because of the gap.  Thus, students would not request a change of status.

The USCIS’ announcement on April 18, 2008, specifically grants students facing a gap problem to submit a belated change of status request, if they are choosen in the H-1B lottery.  This solution means many students will not need to leave the U.S. before beginning H-1B employment, eliminating a major burden for these students.

Attorneys at Smith & Garg, PC regularly help students with their visa needs.  Please feel free to contact us if you have any questions about a gap issue or any other immigration concern.