UNITED STATES – Automatic Cap-Gap Solution for F-1 Students

Last year, the U.S. Citizenship and Immigration Services (USCIS) introduced an interim rule that generates an automatic extension of status for certain F-1 students with approved H-1B petitions filed under the FY2010 H-1B cap.? This interim rule remains in force for the FY2011 H-1B cap this year.

A gap in status can occur between the time an employer files a petition for an F-1 student to change to H-1B status and the time the H-1B status becomes active on October 1st.? Specifically, in years where all H-1B numbers are exhausted, employers may not file an H-1B petition earlier than April 1st for the following fiscal year, which starts October 1st.? So, for example, if an F-1 student has approved optional practical training (OPT) work authorization that expires on July 1st, and her H-1B status cannot begin until October 1st, there would be a 3-month gap during which she could not work.? (And, incidentally, in this example she would be required to return to her home country until her H-1B status became active, at which time she would need to apply for an H-1B visa stamp at a U.S. consular post before she could re-enter the United States in H-1B status.)?

Once a timely H-1B petition has been filed, the automatic cap-gap extension will be invoked and will continue until the petition is approved.? If the student?s H-1B petition is selected and approved, the student?s extension will continue through September 30th.? If the petition is ultimately denied, withdrawn or revoked, the cap-gap protection is removed.? In that case, the student would have the standard 60-day grace period from the date their OPT ends to depart the United States.?

An F-1 student benefiting from cap-gap provisions will need to get an updated Form I-20 from his designated school official (DSO). ?Indeed, a new I-20 will be the only document a student will have to demonstrate continuing OPT work authorization. In some cases, the student?s DSO may need to update the student?s SEVIS record to have the cap-gap extension properly applied.

F-1 students should not depart the United States during cap-gap periods.? The reason for this is that, technically, the EAD card of an F-1 student on OPT will have expired under a cap-gap situation.? Therefore, if the student departs the United States during the cap-gap extension period, she will not be able to return in F-1 status.? Instead, she would have to apply for an H-1B visa at a U.S. consular post abroad and plan to re-enter the United States after her H-1B becomes active on October 1st.