H-1B Cap Gap Information

 

The H-1B non immigrant category is a temporary employment classification reserved for professionals who will be employed in a “specialty occupation” that is initially valid for three years and may be renewed for a maximum of six years (although law permits extensions beyond six years under limited circumstances).

“Specialty occupations” are defined by the USCIS as positions requiring theoretical and practical application of specialized knowledge for performance of the employment duties.  This position must also require a minimum of a Bachelor degree or higher to qualify as a specialty occupation.

A United States employer must submit an H-1B Petition to the USCIS (United States Citizenship & Immigration Services) for approval of the H-1B position. The limit on the number of H-1B positions approved is called the H-1B cap, also called the H-1B quota. There is an annual cap of 65,000 H-1B visas available to foreign nationals during each fiscal year.  An additional 20,000 H-1B visas are allotted to foreign nationals holding advanced degrees (masters degree or higher). In addition, there is also what is known as “H-1B exempt visas” which have no quota limit, and are filed on behalf of H-1B workers who will work at institutions of higher education, related or affiliated nonprofit entities, nonprofit research or government research organizations. Generally H-1B beneficiaries seeking H-1B extensions or H-1B transfers to a new employers are also not subject to the quota.

An employer cannot file an H-1B visa petition which is submitted earlier than six (6) months in advance of the date of the actual need of the employer’s services. The earliest date that an employer can file an H-1B Petition is April 1 of each fiscal year. If the USCIS approves the H-1B Petition, the earliest date that the employee may start his or her approved H-1B employment is October 1 of each fiscal year.

The H-1B Cap can at times be reached quickly, so to ensure the best opportunity of being issued an H-1B visa, it is important to file your H-1B petition as quickly as possible after April 1 of the relevant fiscal year.  As H-1B visas are filed, they are counted against the H-1B cap, and once the limit is reached, no more H-1B petitions may be filed until the next fiscal year.

Cap Gap Extension for F-1 Students who are the subject of an H-1B petition

The H-1B “Cap Gap” occurs when an F-1 student’s status and work authorization expires before they can start their approved H-1B employment on October 1, The “Cap Gap Extension” fills the gap between an eligible F-1 student status and the start of their H-1B status, thus allowing the student to remain in the United States during the “gap” period. Recent changes now allow this cap-gap extension for students who are beneficiaries of properly filed H-1B petitions that are filed while the student’s F-1 duration of status is still in effect, including time during the course of academic study, any authorized periods of OPT (Optional Practice Training), and /or is in their 60 day departing date grace period, and have a pending or approved change of status petition pending with the USCIS that was filed prior to the expiration of their OPT or 60 day grace period.

Once a timely filing has been made, the automatic cap gap extension will begin and will continue until the H-1B process has been completed. In the interim, if the employer followed regulations and filed an H-1B visa petition before the F-1 status of OPT expires, the potential H-1B worker may remain in the U.S. and continue to work while the H-1B is pending and/or is approved, even though their OPT expires at some point during the summer. If the F1 student was not in an authorized period of OPT on the eligibility date for the cap gap extension, the employment authorization would not be extended automatically because it already expired, and the cap gap does not serve to reinstate or retroactively grant employment authorization.

Once a petition has been filed to change to H-1B, the automatic gap extension will begin allowing the foreign national to remain in the U.S. without having to return home to process the visa.  If the H-1B petition is selected and approved, the student’s extension will continue through the 30th of September, and they may begin work on October 1.  If the USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 visa student covered by the automatic cap gap extension because they do not qualify, the student work authorization ends in 10 days and the student will have the usual 60 day grace period from the date of notification of denial, rejection, withdrawal, or revocation of the petition, to prepare for and leave the United States. For denied cases it should be noted that the 60 day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation, or a student whose petition was revoked based on a finding of fraud or misrepresentation. In both of these instances, the 60 day grace period and automatic cap gap extension would not apply and the student would be required to leave the United States immediately.  F-1 students who do not qualify for cap gap extension, and whose period of authorized stay expires before October 1st, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap gap period for status updates regarding the H-1B petition processing. A form I-797, Notice of Action with a valid receipt number will serve as evidence that the petition was filed and accepted. A student must remain in contact with the employer that filed the form I-129 Petition for a non immigrant worker  on the student’s behalf, and with and OIP International Student Advisor.

Of special note: If the student chooses to travel outside the Untied States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning. Since the H1B petition is presumably for an October 1 or later start date, the student should not travel outside the United States during the cap gap extension if possible. The USCIS will consider a change of status application to be abandoned if the applicant leaves the country where the application remains pending. A change of status petition form F-1 to H-1B filed on behalf of a student with a cap gap extension who departs the U.S. before the application is adjudicated could be denied. For further inforamtion regarding cap gap issues, see updated F&Q’s at:USCIS:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel

Disclaimer: Providing the above general information is to inform the public, and is not intended to be used or taken as legal advise for any individual or situation. Using this blog does not establish an attorney client relationship between you and the Blog/Web Site publisher and is not a substitute for legal advice from a licensed professional attorney. Although the  hiring of an immigration  lawyer is an important decision, this blog is not published for advertising or solicitation purposes