Foreign nationals who come to the United States to study are often given a year of OPT – optional practical training- following graduation from university. During OPT, a foreign national is able to work in the United States. However, once a foreign national’s OPT expires, he or she must stop working and leave the United States within 60 days.
If a foreign national desires to remain employed in the United States, another immigration status must be obtained prior to the expiration of OPT status. For many foreign nationals, the H-1B visa offers a viable option for extending their work authorization in the United States. However, due to the H-1B visa cap, a foreign national’s OPT status will often expire prior to the beginning of H-1B availability on October 1 of each year. For example, many individuals’ OPT status expire in June – and have no status to hold them over until an H-1B kicks in on October 1.
Luckily, the immigration agency has acknowledged this inconvenience, and has developed what is called the “cap gap.” The H-1b cap gap allows for the extension of an individual’s F-1 (OPT) status through September 30 – if an H-1b application has been approved with a start date of October 1.
Please contact an H-1B visa lawyer to find out if you are eligible for the cap gap – not all individuals are eligible.
Here are some common questions about the Cap Gap.
What is the Cap Gap?
The Cap Gap refers to current regulations that allow certain students to remain in F-1 (student) status until the start date of an H-1B visa. Students must have a pending or approved H-1B petition.
Which Petitions and Beneficiaries Qualify for a Cap-Gap Extension?
To qualify, an H-1b petition must be timely filed on behalf of an eligible F-1 student and request a change of status to h-1B on October 1. Timely filed means an H-1B petition filed during the eligible time period (after April 1st), and during an applicant’s F-1 status, OPT status, or 60 day grace period following OPT status.
How Can A Cap Gap Recipient Show Evidence of Continuing Status?
A qualifying applicant can obtain proof of status through contacting their school’s Designated School Official.
Can a Person In Cap Gap Travel Overseas?
No. A person who is in cap gap status cannot travel overseas while in that status. To do so will have consequences.
To learn more about the Cap Gap, please visit the USCIS website. Additionally, to learn if you are eligible for the Cap Gap, please contact this NYC immigration lawyer for assistance.