“CAP GAP” RELIEF COMES INTO PLAY FOR H-1B QUOTA/CAP CASES CURRENTLY PROCESSED BY USCIS



With U.S. Citizenship and Immigration Services (USCIS) continuing to accept and process new H-1B petitions subject to the fiscal year 2012 cap that started on April 1, 2011, it is also time to consider how “cap-gap” relief helps F-1 students who have pending H-1B petitions with USCIS at the moment.

In the interim final rule published in the Federal Register in April 2008, F-1 students with pending or approved H-1B petitions may now remain in F-1 status up to the start of their approved H-1B employment start date on October 1, even if their F-1 status and work authorization expire before then.  This is the benefit of cap gap extension/relief.

In order to qualify for cap gap extension/relief, the H-1B petition must be timely filed on behalf of an F-1 student.  USCIS defines “timely filed” to mean that the H-1B petition – which would be a change of status, rather than a request for consular processing petition – was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still valid.  This covers any period of time during the academic studies, and any authorized periods of post-completion Optional Practical Training (OPT), as well as the 60-day grace period after completion of OPT.

As soon as the H-1B petition is timely filed, the cap gap extension/relief automatically kicks in, and it will continue to be in effect until the H-1B process is completed.  If the H-1B petition is selected by USCIS for processing, then that means the cap gap extension is valid through September 30, unless this H-1B petition is denied or revoked.  However, if the H-1B petition is not accepted by USCIS, then the student will still have the usual 60-day grace period from the date of the rejection to prepare to leave the U.S.  This also applies to those petitions that are denied, rejected, or revoked by USCIS.

If students have already completed their post-completion OPT and are within the 60-day grace period on April 1, they would still benefit from the automatic extension of their D/S under the cap gap provision.  However, their employment authorization will not be extended automatically because it has already expired by that time, and cap gap does not extend any employment authorization, or even reinstate/retroactively grant employment authorization to the student.  So, they can remain in the U.S. while they wait for the H-1B petition to be adjudicated by USCIS, but they may not work at all.

In order to obtain physical proof of continuation of status via cap gap extension/relief, students should make sure to bring with them to their Designated School Officer at their university, proof of timely filed H-1B petition (i.e. express mail receipt, or certified mail receipt of filing of H-1B petition) and the DSO will issue a preliminary cap gap I-20 granting extension until June 1.  If the student actually has an I-797 filing receipt notice, then that means the student’s H-1B petition has been selected for further processing by USCIS, and the DSO will then issue a new cap gap I-20 with continued extension of status.

Cap gap extension does not grant travel authorization to the students.  If the student still decides to travel abroad, he/she will have to apply for an H-1B visa at a U.S. consulate or embassy abroad and only after their H-1B petition has been approved, and during the period close to, or after October 1, because the new H-1B start date is invariably on October 1, and he/she cannot enter the U.S. on H-1B status until it is close to October 1.

Leave a Reply