Thursday, January 12, 2012

H-1B "Cap-Gap" Rules: A Primer

If an F-1 nonimmigrant student is employed on post-completion optional practical training (OPT) and that student is the beneficiary of a pending or approved H-1B petition, the student may be able to continue working beyond the expiration date on his or her employment authorization document (EAD).  They may do so by taking advantage of the cap gap provisions for automatic extension of OPT.  But a careful reading of the cap gap provisions indicates that it applies in a relatively narrow setting.  This article addresses what the H-1B cap gap is, and more importantly, what it is not.

The OPT/ H-1B Cap Problem
In the past, F-1 students who were the beneficiaries of an H-1B petition often had their F-1 status expire before their H-1B status began on October 1 – a period known as the "cap gap." The most common situation occurred when a student’s OPT ended in the spring or early summer, and the student’s F-1 status expired 60 days after that, leaving a gap of several months before the individual’s H-1B status began on October 1. An F-1 student in a cap-gap situation would, in most cases, have to leave the United States and return at the time the student’s H-1B status became effective (at the beginning of the next fiscal year). Depending on when the student’s status expired, such circumstances could require the student to remain outside the United States for several months.

USCIS "Cap-Gap" Solution
Under the cap gap rule issued in April 2008, an F-1 student who is the beneficiary of an H-1B petition requesting a start date of October 1, and requesting change of status (COS) will automatically be granted an extension of optional practical training (OPT) work authorization, until October 1 of the fiscal year for which H-1B status is being requested.  This extension will allow F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1. The rule requires the H-1B petition to be "timely filed"; it does not require the H-1B petition to be approved before the automatic extensions can take effect. An application is generally considered "filed" once it is accepted for processing by USCIS.

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT. The H-1B receipt notice (Form I-797) should be provided by the employer to update the I-20.  The I-20 document serves as proof of continued employment authorization. If the H-1B petition is rejected, denied or revoked, the automatic extension of status and work authorization will immediately terminate.

What the "Cap-Gap" is Not
Remember, to qualify for the H-1B cap-gap extensions [8 C.F.R. § 214.2(f)(5)(vi)], the student must be the beneficiary of an H-1B petition that requests all three of the following:
  1. has been timely filed;
  2. that requests an employment start date of October 1 of the following fiscal year; and
  3. that requests a change of status (from F-1 to H-1B)
Also, the student must not have violated the terms or conditions of his or her F-1 status.  There are numerous other scenarios where beneficiaries working on post-completion OPT have had H-1B petitions filed on their behalf.  But if the three elements above are not met, then the "cap-gap" rules do not apply.
For students who obtained F-1 OPT, there is a 60-day grace period.  The 60-day grace period begins at the end of the OPT. This time allows students to remain legally in the U.S. to travel or wrap up personal business and other matters.  The 60-day grace period at the end of OPT does not entitle someone to continue to work. The work authorization ends with the OPT.  You are allowed to remain in the U.S. during the grace period, to live and travel, to wrap up your affairs, or to wait for the change of status. But there is no work authorization attached to the grace period.

If your employer has filed the H-1B on your behalf before your OPT expires, and you are not within the above-mentioned cap gap provisions, several issues may come up.  If your H-1B is approved before your OPT expires, obviously you are fine and your status will be changed from F-1 to H-1B.  If your H-1B is approved during the grace period, again you will be ok so long as you did not violate any terms and conditions of your OPT status.  If your H-1B is approved after your 60-day grace period expires, and you have remained in the U.S., and the gap cap provisions do not apply, look into filing premium processing upgrade around 30 days before your 60-day expiration.  That way, if USCIS seeks additional evidence after the premium upgrade you have sufficient time to submit the response and obtain your approval.  Also, look at the start date of your H-1B on the I-797.  If the H-1B start date is prior to the expiration of your 60 day grace period in OPT, you will likely be ok.  If the start date is after the 60-day grace period, consult an immigration lawyer.  In this scenario, you will have consular process to renew your H-1B to "cure" the cap in status created by this problem. This is why it would be important to request premium processing as soon as you see this becoming a problem.  Better to pay for the upgrade now than having to pay later by flying back home and waiting for the visa at a crowded consulate.