In my law office, I work with various types of immigration cases from around the country. As an immigration attorney I find that one area that is especially active this time of year is that which involves the “cap gap.”
Defining the Cap Gap
The cap gap is that period of time that covers from when someone in the U.S. who is under a F-1 visa, which is designated for students, is no longer a student to the time that they are given employment. There is a gap between that person being a student, after which they have attained their degree, and the period during which they begin working for a U.S. company. The potential employer petitions for the student to be given the new designation of H-1B and during that time and until the student can be under the H-1B visa, the F-1 status is extended.
Why it Occurs
The fiscal year for the U.S. government starts on October 1. That is also the designated date that those who are newly granted H-1B status may start work. The earliest that anyone may petition for a H-1B visa is April 1. Those students who expect to receive their degrees will usually do so in May. Even with the sixty-day grace period that means there is a gap of time between when a student’s F-1 status is in effect and their H-1B visa goes into effect. This period is covered by the extension of the F-1 to qualified applicants.
Filing for H-1B
Those who have been offered work by an employer should make sure that their potential employer files the proper H-1B paperwork in a timely manner. It is best to file paperwork as soon as possible. There are a limited number of H-1B visas available.
It’s always better to file sooner than later for a H-1B visa. If you’re a student with F-1 status who has been offered employment pending or after the completion of your degree, then it’s incumbent that you ensure that your employer immediately engages in the process of petitioning for H-1B status.