What is H-1B Cap gap?

H-1B 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.  Since many employers must file their H-1B visas early (beginning April 1) to maximize their chance of obtaining an H-1B number while the H-1B cap is still available, the legal status of the H-1b beneficiary who is commonly a  F-1 student may expire prior to the October 1st commencement date of H-1B status.  In such situation, the H-1b beneficiary must remain his/her lawful status from the time the H-1B petition is filed to the time the H-1B visa becomes effective.

Change of Status from F-1 to H-1B

A change of status from a F-1 student to H-1b visa occurs when a foreign national who is qualified for H-1B status is already present in the United States on a F-1 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.  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.  Once the H-1b visa is approved, the beneficiary will have to change his/her F-1 status to H-1b status. However, approval of a change of status application does not authorize the F-1 student to stay in the U.S. during the “cap gap” period.

H-1B Cap gap Extension

Under a rule issued in April 2008, the lawful status of an F-1 student who is the beneficiary of both an H-1B application and a request for change of status application will be automatically extended until October 1st of the requested H-1B 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 H-1B start date to legally remain in the U.S. until the beginning of their H-1B employment on October 1.  The automatic extension applies to students who have been granted OPT, allowing them to work until the H-1B 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.

Travel outside of U.S. during H-1B Cap gap

Whether or not a F-1 student should travel during his/her H-1b 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 “H-1B 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…

We recommend our clients contact us in advance of making any travel plans when an h1b petition will be pending, to discuss the risks and their travel options.

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You may be interested in the following pages:

• H-1B Specialty Occupation requirements
• H-1B employee qualifications
• H-1B Cap
• H-1B Extension
• H-1B Transfer

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