With the H-1b cap season in full swing, the USCIS has issued a new set of FAQ on the subject of "cap-gap". A "cap-gap" occurs when a foreign student's EAD card, issued pursuant to the OPT rules, expires prior to October 1, 2011. The USCIS has adopted rules that provides for an automatic extension that allows students to continue to be employed under the OPT provisions as long as their sponsoring employer has timely filed an H-1b cap subject petition that is properly receipted. An employer should be careful that the employee's I-9 form is properly completed in this situation. We applaud the USCIS for its "cap-gap" policy.
The USCIS has announced that it will now begin issuing employment authorization documents and advance parole documents on a single card for certain I-485 applicants. The card looks similar to the current employment authorization document (EAD) but includes a text that reads, "Serves as I-512 Advance Parole". Employers may accept the new card as a List A document when completing the Form I-9, Employment Eligibility Verification. To receive the single card, an applicant must file for EAD and Advance Parole at the same time. An applicant, who already has an EAD and AP, can apply for the single card only if: (1) the current EAD has less than 120 days validity left; and (2) the Advance Parole has less than 120 days validity date or is for a single entry. Generally the single card will be valid for one or two years, depending upon the availability of an immigrant visa although USCIS retains the discretion to issue it for a shorter period or a longer period depending upon the circumstances of the particular case.