H1B Visa Cap Gap Rules: A Primer

The H1B visa cap is routinely met very quickly. Perhaps you have heard of the H1B visa cap gap? Well, a majority of cap subject H1B visa petitions were filed on behalf of students in F1 status. What happens if your H1B visa is denied and you are no longer in F1 status? What if your H1B visa is pending while your F1 status expires? Human Resources departments face these questions every day. The complicated, and often counter-intuitive, immigration laws do not help.

This article addresses what the H1B cap gap is, and more importantly, what it is not. Contact the experienced business immigration lawyer at Columbus-based law firm Porter Law Office, LLC for a free consultation. 

The OPT/ H1B Visa Cap Gap Problem

The following fact scenario is simple on its face, yet it illustrates some of the nuances in dealing with an H1B visa:

An international student on F-1 status is employed on post-completion optional practical training (OPT). The student is offered employment and is the beneficiary of a pending or approved H1B visa petition. In this situation, the student may be able to continue working beyond the expiration date on his or her employment authorization document (EAD). The student may do so by taking advantage of the cap gap provisions for automatic extension of OPT. But, a careful reading of the cap gap provisions indicates that it applies in a relatively narrow setting.

In the past, F-1 students who were the beneficiaries of an H1B visa petition often had their F-1 status expire before their H1B visa status began on October 1 – a period known as the “cap gap.” The most common situation occurred when a student’s OPT ended in the spring or early summer, and the student’s F-1 status expired 60 days after that, leaving a gap of several months before the individual’s H1B visa status began on October 1.

An F-1 student in a cap-gap situation would, in most cases, have to leave the United States and return at the time the student’s H1B visa status became effective (at the beginning of the next fiscal year). Depending on when the student’s status expired, such circumstances could require the student to remain outside the United States for several months.

USCIS “H1B Cap-Gap” Solution

Under the H1B cap gap rule issued in April 2008, an F-1 student who is the beneficiary of an H1B visa petition requesting a start date of October 1, and requesting change of status will automatically be granted an extension of OPT work authorization, until October 1 of the fiscal year for which H1B visa status is being requested.

This extension will allow F-1s whose OPT will expire before the start date of a petition filed under the H1B visa cap to remain in the United States and work through the beginning of their H1B visa employment on October 1. The rule requires the H1B visa petition to be “timely filed”; it does not require the H1B visa petition to be approved before the automatic extensions can take effect. An application is generally considered “filed” once it is accepted for processing by USCIS.

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT.

The H1B visa receipt notice (Form I-797) should be provided to the employer to update the I-20. The I-20 document serves as proof of continued employment authorization. If the H1B visa petition is rejected, denied or revoked, the automatic extension of status and work authorization will immediately terminate.

Contact Porter Law Office, LLC for a free consultation to discuss your H1B visa alternatives. 

What the “Cap-Gap” is Not

Remember, to qualify for the H1B visa cap-gap extensions [8 C.F.R. § 214.2(f)(5)(vi)], the student must be the beneficiary of an H1B visa petition that requests all three of the following:

1. has been timely filed;
2. that requests an employment start date of October 1 of the following fiscal year; and
3. that requests a change of status (from F-1 to H1B)

Also, the student must not have violated the terms or conditions of his or her F-1 status. There are numerous other scenarios where beneficiaries working on post-completion OPT have had H1B visa petitions filed on their behalf. But if the three elements above are not met, then the “cap-gap” rules do not apply.

 For students who obtained F-1 OPT, there is a 60-day grace period. The 60-day grace period begins at the end of the OPT. This time allows students to remain legally in the U.S. to travel or wrap up personal business and other matters. The 60-day grace period at the end of OPT does not entitle someone to continue to work. The work authorization ends with the OPT.

If an employer has filed the H1B visa on behalf of an F-1 student before their OPT expires, and they are not within the above-mentioned cap gap provisions, several issues may arise.

• If the H1B visa is approved before the OPT expires, obviously the employee will be in good status (from F-1 to H1B).
• If the H1B visa is approved during the grace period, again the employee should be ok as long as the employee did not violate any terms and conditions of their OPT status.
• If the H1B visa is approved after the 60-day grace period expires, and the employee has remained in the U.S., and the gap cap provisions do not apply, look into filing premium processing upgrade around 30 days before your 60-day expiration. That way, if USCIS seeks additional evidence after the premium upgrade you have sufficient time to submit the response and obtain an approval.
• Also, look at the start date of the H1B visa on the I-797. If the H1B visa start date is prior to the expiration of your 60 day grace period in OPT, the employee will likely be ok.
• If the start date is after the 60-day grace period, consult an immigration lawyer. In this scenario, the employee will likely have to process the H1B visa at a consulate to remedy the cap in status created by this problem. This is why it would be important to request premium processing as soon as you see this becoming a problem.

Contact an Experienced Columbus Immigration Lawyer 

H1B Visa Representation

The experienced employment immigration attorney at Porter Law Office, LLC is dedicated to assisting your business navigate the complex H1B visa process. By hiring Porter Law Office, LLC, you be partnering with an AV rated H1B lawyer who understands what it takes to secure an H1B visa in today’s challenging employment environment. Porter Law Office, LLC is conveniently located in the Columbus, Ohio suburb of Gahanna. If you need help with securing an H1B visa, or any other immigration benefit, contact Columbus employment immigration lawyer Matthew R. Porter today for free consultation to discuss your options.