Can You Stay in the U.S. on a Cap Gap while H1B is Pending?

What if my OPT is set to expire before my H1B takes effect?? Cap gap to the rescue!

If you studied in the U.S. in F status, you are probably familiar with OPT (Optional Practical Training), which temporarily allows you to work in the U.S. in your major area of study. Now what happens if your OPT is set to expire before your pending or approved H1B is set to take effect? This is where cap gap, the automatic extension of your F status until your H1B status takes effect, comes to the rescue! Take the hypothetical of Luisa:

Luisa studies in the U.S. and obtains one year of OPT from April 15, 2013 until April 15, 2014. Luisa, who otherwise qualifies for a H1B, has found an employer to sponsor her for the H1B. The earliest Luisa’s employer can file for the H1B is April 1, 2014 and the H1B won’t be effective until October 1, 2014. So what is Luisa supposed to do from April 15, 2014 (the date her OPT expires) until October 1, 2014 (the date her H1B becomes effective)? Thankfully, immigration regulations allow individuals like Luisa with pending or approved H-1B petitions to remain in F status.

The period of time when an F student’s status and work authorization expire through the start date of their H1B is known as the “cap-gap”. The automatic extension of F status until the start of the H1B is referred to as “filling the cap-gap.” Again, the extension of the F status until the start of the H1B is automatic. In the hypothetical above, Luisa can continue living and working in the U.S. from April 15, 2014 (the date her OPT would have expired if not for the cap gap) until October 1, 2014 (the date her H1B becomes effective).

Now, what happens if USCIS (U.S. Immigration) denies, rejects, or revokes an H1B petition filed on behalf of an individual in F status covered by the automatic cap-gap extension? In that unfortunate scenario, the individual will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before s/he is required to depart the United States. Note that the 60 day grace period does not apply in cases of status violations, misrepresentation, or fraud.

A final common question concerns travel during the cap gap. If you travel outside of the U.S. during your cap-gap extension you will NOT be able to return in F status. Instead, you will need to apply for your H1B visa at a consular post abroad prior to returning.

If you have questions or need help with your H1B or other immigration matters please contact us at (916) 453-3553. If you are in the Sacramento or the Bay Area you can arrange to meet us in one of our offices or, if elsewhere in the U.S., we’d be happy to consult with you over the phone or Skype.

Published by: Ranchod Law Group