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H-1B Cap-Gap

Foreign students on F-1 status often utilize Optional Practical Training (OPT)as a mean to gain practical experience in the United States in a field that is related to his or her study. While working on OPT, the student is in F-1 status. With the exception of those whose course of study is within the STEM Designated Degree Program, OPT is limited to one year and cannot be extended. If certain conditions are met, an F-1 student is eligible to change to H-1B status. However, many F-1 students face a situation wherein their work authorization expires before the start date of the approved H-1B employment, thereby leaving a period commonly known as “Cap-Gap”.

Cap-Gap occurs because an employer may not file, and USCIS may not accept an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1 with a start date of October 1 (the first day of the following fiscal year). For example, if an employer wishes its H-1B to start working on October 1, 2013 (first day of fiscal year 2014), the earliest date the employer can file the H-1B petition for its alien worker is April 1, 2013. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Fortunately, current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the Cap-Gap period.

To qualify for the cap-gap extension, an H-1B petition must be timely filed on behalf of the eligible students and must request a change of status to H-1B beginning on October 1. Timely filed means that the H-1B petition is filed during the H-1B acceptance period starting April 1 of every year, and while the student’s F-1 duration of status (D/S) admission is still in effect (including any period of time during the academic course of study, any authorized period of post-completion OPT, and the 60-day grace period following OPT expiration). If the H-1B petition is filed before the student’s OPT status expires, then the student can continue working until the H-1B petition is adjudicated. If the H-1B petition is approved, the student’s F-1 status and OPT are extended to September 30. If the H-1B petition is filed when the student has entered the 60-day grace period after expiration of the OPT, then the student cannot work but is permitted to stay in U.S. on F-1 status and wait until the H-1B petition is adjudicated. If the H-1B petition is denied, then the student will enter the standard 60-day grace period from the date of the denial notice.

It is strongly advised that students not travel outside the U.S. during the cap-gap extension. The change of status is considered to be abandoned if a student departs the U.S. while the H-1B petition is pending. Even after the H-1B petition is approved, the student who travels abroad will not be able to return to the U.S. in F-1 status unless he or she has a valid unexpired Employment Authorization Document (EAD). If the EAD has expired, the student will have to apply for the H-1B visa at the consular and enter the U.S. no more than 10 days before October 1 if the H-1B petition is approved

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