If you are a F-1 student and a beneficiary of approved H-1B petition, if your authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day departure preparation period) expires before the October 1/ H-1B employment start date, then you have a gap in authorized stay and H-1B1 employment. This situation is commonly referred to as the ``cap-gap.''
- Need to Fix Cap Gap:
- If you are on post-completion OPT. Once that OPT has ended, you are authorized to remain in the United States for up to 60 days to prepare for departure, which is called grace period. There is a significant amount of competition among employers of highly skilled workers for the limited number of H-1B visas available each fiscal year. Each year, the cap has been reached earlier in the year. For FY05, the cap was reached on October 1, 2004, the first day of that fiscal year. In FY06, the cap was reached on August 10, 2005; in FY 07, the cap was reached on May 26, 2006; in FY 08, the cap was reached on April 2, 2007, the first business day for filing. In FY 09, the cap was reached within the first week of the April 2008. On that single day, USCIS received more than twice the number of petitions needed to reach the cap for the fiscal years 07 & 08.
- If you are on post-completion OPT. Once that OPT has ended, you are authorized to remain in the United States for up to 60 days to prepare for departure, which is called grace period. There is a significant amount of competition among employers of highly skilled workers for the limited number of H-1B visas available each fiscal year. Each year, the cap has been reached earlier in the year. For FY05, the cap was reached on October 1, 2004, the first day of that fiscal year. In FY06, the cap was reached on August 10, 2005; in FY 07, the cap was reached on May 26, 2006; in FY 08, the cap was reached on April 2, 2007, the first business day for filing. In FY 09, the cap was reached within the first week of the April 2008. On that single day, USCIS received more than twice the number of petitions needed to reach the cap for the fiscal years 07 & 08.
An F-1 student in a cap-gap situation would have to leave the United States and return at the time his or her H-1B status becomes effective at the beginning of the next fiscal year. This gap creates a hardship to a number of students and provides a disincentive to remaining in the United States for employment. The cap-gap therefore creates a recruiting obstacle for U.S. employers interested in obtaining F-1 students for employment and submitting H-1B petitions on their behalf. Moreover, when the student is already working for a U.S. company on OPT and has to leave the United States, frequently for several months, during the cap-gap period, the employer suffers a major disruption.
Finally, USCIS permanently amended the 8 CFR 214.2(f)(5)(vi) with effective from April 8, 2008. This rule also ameliorates the so-called ``cap-gap'' problem by extending the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the students will have an extension that enables them to remain in the United States until the requested start date indicated in the H-1B petition takes effect.
- Under this rule, the F-1 status of students is automatically extended when the student is the beneficiary of an H-1B petition for the next fiscal year (with an October 1 employment start date) filed on his or her behalf during the period in which H-1B petitions are accepted for that fiscal year.
- The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition.
- If the H-1B petition filed on behalf of the student is selected, the student may remain in the United States and, if on post-completion OPT, continue working until the October 1 start date indicated on the approved H-1B petition.
- The student may benefit from this provision only if he or she has not violated his or her status.
Please note that any automatic extension of an F-1 student's duration of status under 8 CFR Section (f)(5)(vi)(A) will applies to the duration of status of any F-2 dependent aliens.