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.
It has been reported by the American Immigration Lawyers Association (AILA) that the Office of Management and Budget (OMB) has cleared for publication an interim regulation titled "Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation." It is believed that this rule addresses the filing of duplicate petitions in the upcoming H-1B "lottery." Given that April 1 is only a few days away, it is anticipated that the regulation will be cleared by the USCIS quickly and be published in the Federal Register, whereupon, it will become effective. We will keep you updated as developments occur.