In an H-1B filing season that saw historic levels of petitions, it is important to keep in mind a particular benefit for F-1 visa holders known as the “cap-gap.” In particular, for beneficiaries of approved H-1B change of status petitions with employment start dates of October 1st, F-1 aliens should be aware that travel abroad during cap-gap periods will likely result in the loss of F-1 status and force such aliens to remain outside of the US until they can return based on their H-1B visa (September 20th, at the earliest).

Cap-Gap Overview

The cap-gap is a means to bridge the gap in status sometimes caused by the realities of the different time periods involved in F-1 and H-1B statuses. Since the earliest that an H-1B status holder can being employment in the United States is October 1 of any given year and school graduation dates and the ends of OPT time are often before this, USCIS policy allows F-1 status holders with pending or approved petitions requesting change of status to H-1B in October to automatically extend their status until October 1st. Periods of employment authorization pursuant to F-1 status are also extended until October 1st under the cap-gap provisions if the alien was in a period of F-1 authorized employment at the time the H-1B petition was filed.

Cap-Gap Eligibility

Aliens in F-1 status are eligible for the cap-gap if they timely filed an H-1B petition to change status while they were still in F-1 status, which includes time spent in a course of study, periods of optional practical training (OPT), and the 60 day “grace period” used for preparation to depart the United States after F-1 status. If an alien petitioned to change to H-1B status for the coming fiscal year while in any of these F-1 time periods then he/she is eligible for the cap-gap. Alien’s who filed an H-1B petition but indicated “consular processing” instead of requesting a change of status are not eligible for the cap-gap.

Restrictions on Re-entering the US during Cap-Gap Period

Since the cap-gap is implemented to allow an alien in F-1 status to remain in the United States until the beginning date of their approved H-1B petition, the USCIS’s understanding is that such cap-gap beneficiaries will in fact remain in the United States. For current F-1 aliens with approved H-1B petitions taking advantage of the cap-gap, it should be noted that the USCIS does not see the extension of F-1 status due to a cap-gap as allowing an alien to travel abroad and return to the US. If an alien in the cap-gap period leaves the United States before changing to H-1B status, he/she will need to apply for the H-1B visa abroad.

It is highly recommended that an F-1 alien with an approved H-1B change of status petition benefiting from the cap-gap stay in the United States until receiving H-1B status. If an alien absolutely must travel abroad before becoming an H-1B nonimmigrant, the alien should be prepared to remain outside of the United States until September 20th at the earliest since he/she will not be able to return based on F-1 status. A beneficiary of an approved H-1B may be issued a visa to enter the United States up to 10 days before the start of H-1B employment, so an F-1 cap-gap alien who left the United States would be able to return on an H-1B visa as early as September 20th (he/she would not be able to be lawfully employed with the H-1B employer until October 1st at the earliest, however).

For cap-gap aliens who plan a brief trip abroad and wish to return to the United States in F-1 status before changing to H-1B status, USCIS practice does not allow this and such trips should be avoided if possible.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past seventeen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, P.C.

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(05/16/2013)