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H-1B “Cap Gap” for F-1 Students

The cap of 65,000 H-1B petitions for FY2011 has been reached. As a result, one must wait to apply for H-1B status under the new quota for FY2012, starting October 1, 2011. The earliest an H-1B petition can be filed for the new fiscal year is April 1, 2011, requesting an October 1st start date. For certain F-1 students, this interim period creates what is termed the “cap gap” as their status may lapse before their H-1B status can commence on October 1st. Current regulations provide relief to students by allowing an extension of F-1 status and work authorization for those students who are the beneficiaries of a pending or approved H-1B petition.

Upon the submission of a timely filed H-1B petition, the automatic cap gap extension will apply and the F-1 student will continue to maintain valid duration of status until the effective date of the H-1B approved status. Individuals under post-completion OPT at the time of filing will also receive extended work authorization through September 30th under the cap gap provisions. F-1 students with H-1B petitions that remain pending beyond October 1st are allowed to legally remain in the U.S. but their work authorization will cease. Please note that students who are within the 60 day grace period and have already completed their OPT by the April 1st filing date will also benefit from the automatic extension of their duration of status, but will not receive extension of their work authorization. For example, F-1 students whose OPT expires in February 2011 will qualify for an extension of their F-1 status while their H-1B petition is pending, but will not qualify for an extension of their work authorization as their OPT will have expired prior to April 1, 2011. However, F-1 students whose OPT is valid until July 2011 will qualify for both an extension of their F-1 status and extension of their work authorization until September 30, 2011.

For more information on filing a timely H-1B petition on April 1st and qualifying for F-1 extension of status and work authorization under the “cap gap,” please contact our offices.

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