May 3, 2016 Matthew G. Curtis

H-1B Visa Cap-Gap Explained

H-1B Visa Cap-Gap Explained

As the “H-1B Cap season” has just finished, it is important to revisit some of the very common scenarios experienced by those in the F-1 visa status seeking to apply for the H-1B visa through the lottery next April.

The “H1B cap gap” refers to a situation where a gap exists between the expiration of an individual’s F-1 status and the beginning date for an approved H-1B status.

Under this rule, individuals with pending or approved H-1B petitions can remain in the F-1 status during the “gap” between when the F-1 status would have otherwise expired, through the start date of their approved H-1B employment period, as long as the H-1B petition was filed prior to the expiration of that person’s F-1 status.

If an individual is in the F-1 status and they have OPT work authorization, they may be able to continue to work after the expiration of their OPT work authorization under the cap-gap rule if the H-1B petition is filed on or after April 1, but before the expiration of their OPT.

If the student’s OPT expires before April 1st, the student may not be employed again until the H-1B begins on October 1st, but they could remain in the U.S. as long as the H-1B petition is filed while they are still in the F-1 status.

This scenario usually comes about when the individual’s 60 F-1 grace period, following the end of their F-1 status, including OPT, ends on or after the date the H-1B petition is filed.

Let’s look at the timing as it applies in specific scenarios:

Scenario 1: Student’s OPT expires after April 1, petition is timely filed before the expiration of their OPT, and the application is selected in the lottery.

  • Student can live and work in US under the Cap-gap rule described above. This extends the student’s OPT portion of F-1 status until their status is converted automatically on October 1st to an H-1B.

Scenario 2: Student’s OPT expires before filing their H-1B cap case on or after April 1st, but the student is within the standard 60 day grace period following the end of OPT.

  • If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have a 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.
  • Student may live here in the US while the timely filed H-1B cap case is pending. Students whose OPT expires but are within the 60-day grace period can file a change of status and receive an automatic extension of their authorized stay until Sept. 30th if the H-1B is approved, but may notcontinue working under OPT. The student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).
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Matthew G. Curtis

Matthew G. Curtis is an Associate Attorney at Lightman Law Firm.Prior to joining our firm, Mr. Curtis was the Law Clerk to the Honorable Mitzy Galis-Menendez, J.S.C., in the Hudson County Superior Court's Criminal Division. Mr. Curtis is a graduate of University of Richmond, School of Law in Richmond, Virginia. As a law student, Mr. Curtis spent a summer as an aide to Barry Gardener, Member of Parliament for Brent North in London, England, one of Britain's most culturally diverse constituencies.Mr. Curtis gained substantial experience with Federal Administrative law while working for the Environmental Protection Agency in Washington, D.C. He has authored two law journal articles: When Responsive Legislation Ignores the Forest for the Trees (First place, Richmond Journal of Global Law and Business' Daniel T. Murphy Writing Competition), and Legislative Control of Menhaden Fisheries in Virginia.Mr. Curtis is a member in good standing of both the Bar of the State of New York and the State of New Jersey and a member of the American Immigration Lawyers Association (www.AILA.com), the world's largest organization of immigration lawyers.To discuss your possible case with Mr. Curtis or another immigration lawyer from Lightman Law Firm LLC, call (212) 643-0985 or fill out the consultation request form on your right. A representative of our firm will contact you shortly upon review of your request.