What is H-1B Cap Gap Coverage and Do I Qualify?

During H-1B cap season, it is important for F-1 students to understand how the “cap” impacts their ability to change status to H-1B in the US, to continue working on Optional Practical Training (OPT), and to stay in the US prior to H-1B status beginning. Fortunately, USCIS has provided a regulation to assist with these problems or “Cap Gap” issues.

“Cap Gap” occurs when F-1 students who have applied for H-1B employment during their F-1 status are forced to leave the U.S.  This occurs when the F-1 student’s status/work permit expires prior to the beginning of the new H-1B cap fiscal year, which always begins October 1st. Typically, many students graduate in May/June and get 1 year of work authorization under OPT. So their authorized stay and work then expires one year later and 3-4 months short of the H-1B status able to begin.

Prior to 2008, USCIS did not authorize stay for F-1 students between the end of designated OPT, the subsequent 60 day departure preparation period, and the beginning of H-1B employment. A regulation was then issued to allow F-1 students who are the Beneficiaries of a timely filed H-1B petition to be granted an authorized period of stay, including work authorization, that is valid until October 1st of the fiscal year in which H-1B status is requested. If the person’s EAD has already expired but the person is within the 60 day period of authorized stay after expiration, one can still stay in the US legally but cannot work until the H-1B becomes effective. But otherwise, this authorized stay and work authorization is effective upon filing – not upon approval of the H-1B.

International travel during this period is tricky and one should consult with an immigration attorney to apprise her of all facts pertaining to your situation before exiting the US in cap gap status. It is likely one may not be able to come back until within 30 days that H-1B status commences on October 1st.

In any event, an F-1 students should not be dissuaded from applying for an H-1B as soon as possible because they think that they cannot stay during that awkward period of status expiring and new H-1B status. Cap Gap coverage is here to stay! For more information on H-1B Cap Gap coverage contact Denver attorney, Catherine Brown at 303-322-2117.

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