USCIS ISSUES F-1 H-1B CAP GAP Q&A | Weinstock Immigration Lawyers | Expert Advice & Representation in Immigration Law

USCIS just issued a cap gap questions and answers page dealing with the question of who is eligible to benefit from the gap cap rule. The USCIS regulations allow people who were in F-1 OPT status with pending or approved H-1B petitions to remain in valid F-1 status (and have continued employment authorization) even though the F-1 status or EAD would otherwise expire. Because graduates of most U.S. universities graduate in May or June, and the H-1B start date cannot be sooner than October 1 (because that is when the U.S. government’s fiscal year starts) then there is a gap in status between the expiration of the F-1 status (or OPT) and start date of H-1B, known as cap-gap. In the past, these beneficiaries would have to switch to another status or leave the U.S. but under the new rules this can be avoided if an employer files an H-1B visa petition for them with a start date of October 1, 2011 and a change of status from F-1 to H-1B is requested on the I-129 petition. The other main requirements for that to happen are that the H-1B petition would be timely filed (before the expiration on the student’s I-20 or OPT expiration date or within the 60-day grace period after expiration), and non-frivolous. Once the extension is filed, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to depart the United States. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1. The student should then return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status. In order to enjoy from the cap-gap regulation, the students must remain in the United States and cannot leave, otherwise their status would be terminated and they would have to wait abroad until their H-1B start date of October 1 (well technically they could enter up to 10 days before that, which would be September 21). The entire Q&A is available on the USCIS public website at: