The U.S. Citizenship and Immigration Services (USCIS) and Immigration and Custom Enforcement’s (ICE) Student Exchange Visitor Program (SEVP) recently released guidance reminding employers about the automatic extension of F-1 student status in the United States for certain students with pending or approved H- 1B petitions (indicating a request for change of status from F-1 to H-1B classification) for an employment start date of October 1, 2009 under the Fiscal Year 2010 H-1B quota.

For F-1 students with Employment Authorization Documents (EAD) based upon post-completion Optional Practical Training (OPT) that expires between February 1 and April 1, 2009, these students will be able to remain in the United States at least until June 2, 2009 if their employers have filed an H-1B petition under the fiscal year 2010 H-1B quota requesting a change of status from F-1 to H-1B classification. However, during this time, these students will not be able to work in the United States. If the student’s petition is selected in the H1B quota, they will be able to remain in the United States until October 1, 2009 until their H-1B status becomes effective. However, again, they will not be able to work during this period.  

For F-1 students whose EADs based upon post-completion OPT expire on or after April 1, 2009 and who have had an H-1B petition filed on their behalf subject to the Fiscal Year 2010 H-1B quota which requests a change of status from F-1 to H-1B classification, they will also be able to remain in the United States until June 2, 2009. However, in addition to being able to remain in the United States during this period, these students employment authorization will be automatically extended. If the student’s petitions are selected in the H-1B random selection process and are ultimately approved, they will be able to remain in the United States and continue working through October 1, 2009 when their H-1B status becomes effective.  

In order to document continuing employment eligibility on the Form I-9, the F-1 students should contact their schools to obtain updated SEVIS Forms I-20. After the forms have been updated, the forms with the expired EAD card will serve as a List A Number 4 document on the Form I-9. When the student’s petition is selected in the H-1B quota and a receipt is issued, the student may then obtain another updated SEVIS Form I-20 and this new updated SEVIS Form I-20 with the EAD card and the H-1B receipt notice may then be used as a List A Number 4 Form I-9 document.