• Important Reminders Regarding F-1 Students & H-1B 'Cap Gap' Issues
  • April 20, 2010 | Authors: David Grunblatt; Valarie H. McPherson; Jennifer B. Wexler
  • Law Firms: Proskauer Rose LLP - New York Office ; Proskauer Rose LLP - Newark Office ; Proskauer Rose LLP - New York Office ; Proskauer Rose LLP - Newark Office ; Proskauer Rose LLP - New York Office
  • Although new H-1Bs are apparently plentiful this year, its important to remember that many students have status and work authorization that will expire prior to the beginning of the fiscal year on October 1st, when the new H-1B approvals can be used. Under “cap-gap” regulations issued in 2008, certain F-1 students with pending or approved H-1B petitions are allowed to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up through the start of their approved H-1B employment. The regulations provide a useful mechanism for filling the “gap” between the end of a student’s F-1 status and the beginning of H-1B status.

    The F-1 student must be in lawful status at the time of the H-1B petition filing, and the H-1B petition must include a request for change in nonimmigrant classification. An F-1 student whose post-completion Optional Practical Training (OPT) expires between April 1, 2010 and September 30, 2010, and who is the beneficiary of an approved H-1B petition, will have her F-1 status and work authorization will automatically extended through September 30, 2010, unless the H-1B petition is later denied or revoked. An F-1 student who was within her 60 day grace period at the time of filing the H-1B petition, and who has been granted H-1B status, will only receive an automatic extension of her F-1 status through September 30, 2010, and will not receive a new period of work authorization.

    While a student’s status is automatically extended under the cap gap provisions, it is the student’s responsibility to contact her school’s Designated School Officer (DSO) to ensure that her SEVIS record properly reflects her current status. If the student’s SEVIS record is inaccurate, the student should ask the DSO for a “data fix,” and provide evidence that she is entitled to an extension (i.e. a copy of the H-1B receipt notice or approval notice).

    Generally, any student who seeks to travel outside of the U.S. while working on her OPT must be in possession of a valid visa and SEVIS authorization to return to the U.S. If the student is in the U.S. and working pursuant to the “cap gap” rule, however, she will not be able to return to the U.S. until an H-1B visa is issued in her passport. As H-1B petitions typically have October 1st as the initial validity date, the earliest the student could return to the U.S. in H-1B status would be September 20, 2009, ten days before the start of the petition, and she could not begin working until October 1, 2009. It is therefore important for employers and student workers to carefully consider the implications of travel during the cap gap extension period prior to the student leaving the U.S., and to address and adjust travel plans accordingly.