Change of Status F1 to H1B and H1B “Cap-Gap”

A change of status from a F1 student to H1b visa occurs when a foreign national who is qualified for H1B status is already present in the United States on a F1 student status.  A common scenario is that a foreign national comes to the U.S. as a student, pursuing a course of studies at an approved U.S. university (F1 Student Visa).  Upon graduation or after the optional practical training (OPT), he/she is hired by a U.S. employer to work in a position of specialty occupation. Criteria of change of status In order to change status from F1 to H1B, the F1 student (H1B beneficiary) must be in lawful status, absent any extraordinary circumstances.  Being in lawful status means the F1 student status must be valid at the time of the H1B application is filed and up to the time the new H1B status becomes effective. What is H1B Cap-Gap?  H1B cap-gap typically refers to a time period between the completion of a course of study or expiration of OPT and the date that a timely filed cap-subject H1B petition and change of status take effect in October.  Since many employers prefer to file their H1B petitions early (beginning April 1) to maximize their chance of obtaining an H-1B number while the H1B cap is still available, the F1 student lawful status may expire prior to the October 1st commencement date of H-1B status.  As mentioned above, for a change of status from F1 to H1B, the foreign national/student must remain his/her lawful status from the time the H1B petition is filed to the time the H1B visa becomes effective. Approval of the H1B change of status application does not authorize the F1 student to stay in the U.S. when the H1B employment start date is October 1st or later. H-1B Cap-Gap Extension Under a rule issued in April 2008, the lawful status of an F1 student who is the beneficiary of both an H1B application and a request for change of status application will be automatically extended until October 1st of the requested H1B fiscal year. The same rule applies to extension of any grant of OPT work authorization.  The effect of this rule allows F-1 students whose legal status/OPT will expire before the H1B start date to legally remain in the U.S. until the beginning of their H1B employment on October 1.  The automatic extension applies to students who has been granted OPT, allowing them to work until the H1B commencement date of October 1.  For those who have not been granted OPT, their legal status will be automatically extended but will not be allowed to work until Oct 1. Out of U.S. travel during Cap-Gap Whether or not a F1 student should travel during his/her cap gap period depends on upon very specific situation, such as:
  • whether the student is still in an ongoing course of study or ongoing OPT, or
  • whether the student is in the “cap gap” period; or
  • whether the student timely filed his/her H1b petition; or
  • whether the student timely filed his/her change of status petition;
  • whether the student’s OPT is still valid etc…
Due to the detailed and complex H1B cap gap rules, it is advisable to discuss your particular travel plan and cap gap situation with an experienced immigration lawyer.  Please contact Cipolla Law Group for a consultation.

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