USCIS FAQ ON EXTENSION OF CAP-GAP AND OPT FOR F-1 STUDENTS

USCIS recently issued its FAQ on cap-gap protection for F-1 students lawfully present in the U.S. who file for a change of status from F-1 to H-1B for Fiscal Year 2011.

The cap-gap problem stems from the time difference between the H-1B start time and the students' OPT (Optional Practical Training) times. The H-1B visa first becomes available based on on the government fiscal year (which start every year from October 1 to September 30 the following year). H-1B visas can be filed up to 6 months in advance (April 1). However, the student school year usually ends in May for the majority of the students. Once the students graduate, and apply for their OPTs prior to graduation, their OPT expire within one year, usually between May and July, depending on the end of the school year. That leaves a gap between these dates and October 1 where the H-1B starts.

In the past USCIS did not accommodate cap-gap situations, however it now does. USCIS allows F-1 students to avoid the cap-gap situation when an H-1B petition is filed for them and approved for change of status. This automatic extension provides the student continuous status throughout the start date of their H-1B visas, as well as continued employment authorization under their OPT. This terminates upon rejection, denial or revocation of the H-1B petition or for people who violate their status.

Based on this guidance, students can request their schools to update their I-20 forms to allow for the extension throughout September 30, 2010.

The entire FAQ is available at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD