The H1B “Cap-Gap” is a period of stay and/or work authorized by USCIS and ICE for F-1 students whose status expires after an H1B Change of Status petition is filed but before October 1, the beginning of the next fiscal year..
What seems like a straightforward concept can actually be quite confusing for many F-1 students because of the variety of complications and issues involved with both F-1 OPT and the H1B Lottery. For the benefit of employees and employers, we present an overview of the H1B Cap-Gap rule
A. H1B Cap-Gap Extension: An Introduction
USCIS introduced the H1B Cap-Gap to solve a pressing problem faced by many F-1 students and those on OPT – the H1B start date could be no earlier than October 1 but F-1 status and OPT EAD’s would often expire during the summer – creating a literal gap in status or employment. The H1B Cap-Gap rule was created to “fill the gap.”
What Cap-Gap essentially does is freeze an F-1 student’s status when an H1B petition with a request for a Change of Status is filed and extends it. If a student is studying in the U.S. in F-1 status, has entered his or her 60-day grace period, or is in valid OPT when an H1B Cap petition is filed after the H1B filing period opens in April, he or she will remain in that status until the H1B start date.
1. Who Is Eligible For H1B Cap-Gap Extension?
There are essentially 3 groups of F-1 visa holders who are eligible for USCIS Cap-Gap protection:
1.Students who are currently enrolled in approved programs of study with a valid I-20;
2.Those who are employed pursuant to a valid grant of OPT and who have an unexpired EAD; and
3.Those who have entered their 60-day grace period upon completion of their academic program or OPT period.
2. Who Is Not Eligible For H1B Cap-Gap Extension?
Not all individuals in F-1 status are eligible for Cap-Gap protection when an H1B petition is filed. Cap-Gap protection is not triggered:
1.If a Cap-Exempt H1B petition is filed, e.g.:
a.The employer is cap-exempt or
b.The employee/beneficiary has previously been counted in the H1B Cap
2.If someone in F-1 status is not in lawful status when the H-1B petition is filed.
If an individual does not qualify for the Cap-Gap extension, he or she must leave the U.S. when their status expires and apply for an H1B visa abroad and return to the U.S. or file an application to change to another nonimmigrant status
My Case Scenario
Mikhail, who is from Russia, is currently working for a private corporation pursuant to valid OPT. He graduated from a U.S. college with a Bachelor’s degree in Finance. His OPT expires on June 30. He has been offered a job at a university. They will need him to start on October 1. They file the H1B for him in April. As the employer is a qualifying institute of higher education, they are not subject to the H1B Cap. Will Mikhail be permitted to remain in the U.S. in lawful status until October 1 under H1B Cap-Gap?
Mikhail is not covered by H1B Cap-Gap. Because the petitioner here is Cap Exempt, Cap-Gap is not triggered. Once Mikhail’s OPT ends on June 30, he will have 60 days of grace period to remain in the U.S. Mikhail must leave the U.S. before his grace period ends and then re-enter the U.S. only after obtaining his H1B visa stamp. He will not be able to re-enter more than 10 days before the start of the H1B validity date.
3. H1B Cap-Gap: Extension of Work Authorization
If a foreign national is in F-1 status and is in an authorized period of post-completion OPT when the H1B petition is filed in April, the student’s OPT is extended until September 30.
Those in F-1 status who are still enrolled or those who have already entered into the 60-day grace period only have their status extended until September 30. They are NOT authorized to work.
Those who are working pursuant to pre-completion OPT or CPT must STOP working when their work authorization ends. The Cap-Gap extension will not extend their work authorization past the listed expiration date. They will, however, have their F-1 status extended..
My Case Scenario
Tia is a Brazilian national who is currently enrolled in a university in New York. She is pursuing a Master’s degree in Graphic Design and will graduate in May. She obtained her Bachelor’s degree in Art and another Master’s degree in Fine Arts in the U.S. already. She has been offered a position as an Art Teacher. She is not eligible for OPT as this is her second Master’s degree. The school filed an H1B petition in the H1B Cap for Tia in April based on her previously earned degrees and her petition was picked in the H1B Lottery. The school would like her to begin working as soon as she graduates because they believe she is covered by H1B Cap-Gap. Is the school correct? Can Tia work right after she graduates?
The school is incorrect. The filing of the H1B petition while Tia was in lawful F-1 status does trigger H1B Cap-Gap protection once she graduates and her grace period ends. She will be allowed to remain in the U.S. in lawful F-1 status until her H1B is approved or September 30, whichever is later. Tia will not be able to work, however, because the H1B petition was filed while she was studying, not while she had OPT.
4. H1B Cap-Gap Extension And Pending H1B Petition
For many individuals, the H1B petition is not adjudicated by October 1. What happens in such scenarios?
Foreign nationals protected by USCIS Cap-Gap rule continue to remain in a period of authorized stay pending the outcome of the H1B petition. However, those whose work authorization was extended during OPT Cap-Gap must stop working on September 30. Unless otherwise authorized to work (valid STEM OPT issued or pending, or another type of nonimmigrant status), the individual cannot continue or resume working until the H1B petition is approved.
DID YOU KNOW?
H1B Cap-Gap only covers those in F-1 status that have a pending H1B petition with a request for Change of Status.
If the H1B petition requests Consular Notification, H1B Cap-Gap extension is not triggered.H1B Cap-Gap only covers those in F-1 status that have a pending H1B petition with a request for Change of Status.
If the H1B petition requests Consular Notification, H1B Cap-Gap extension is not triggered.
My Case Scenario
Anne, a Canadian national, has been working pursuant to OPT with a company she loves for the past 10 months. Her OPT expires on July 15. The company file an H1B Cap petition on her behalf. On May 10, Anne finds out her petition was not chosen in the H-1B Cap. What happens now? Anne can remain in the U.S. in F-1/OPT status and remain working until July 15. Once her OPT expires, she will enter her 60 day grace period and she should plan to leave the country or change to another lawful nonimmigrant status before her grace period expires.
What if Anne’s petition was picked in the H1B Lottery but is ultimately denied and she is notified of the denial on August 15?
Anne was covered by H1B Cap-Gap protection after the expiration of her OPT due to the pending H1B Cap petition. Cap-Gap protection ends, however, now that her petition has been denied. As her OPT expiration has already passed, she must no stop working and her 60 day grace period will begin on the date of the notification of denial from USCIS.
5. H1B Cap-Gap and Proof of Status
The proof of extension of status can be obtained from the designated international student advisor in the form of an updated I-20:
1.Once an H1B Cap petition is filed but before a receipt notice is issued, those in F-1 status should obtain an updated I-20 showing an extension until June 1.
2.If the student’s petition is picked in the H1B Lottery and a receipt notice is issued, an I-20 can be issued with an extension until September 30.
NOTE: If the student has valid OPT at the time of filing, the I-20 will also show an extension of the OPT.
DID YOU KNOW?
The H1B Cap-Gap extension happens automatically and is an “operation of law.” However, for a variety of reasons, it is prudent for those in F-1 status to maintain documentation to prove their status has been extended.
The H1B Cap-Gap rule allows qualifying F-1 students to remain in the U.S. in legal status while an H1B Cap case is pending. While the Cap-Gap extension provides significant benefits to qualifying F-1 students, adhering strictly to the do’s and don’ts prescribed under the rule in essential to avoid potential issues. It is therefore important that F-1 students as well as H1B employers be familiar with all aspects of USCIS Cap-Gap rule to ensure continuing protection under the rule for qualifying F-1 students.
If you have any questions regarding your eligibility for H1B Cap-Gap extension or need help filing an H1B visa petition, contact our experienced immigration attorneys today for a FREE H1B Consultation.
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