How Do I Apply for the H1B Cap-Gap?
By Sanford Posner
February 9, 2016
During the H1B quota season, I am often asked "are you going to file for the Cap-Gap?" When I explain that there is not a specific form to complete for the H1B Cap-Gap, a litany of questions ensues. Here are a few of the most common ones:
What is the Cap-Gap?
The Cap-Gap evolved from a time when F1 students had a pending H1B quota case and an expiring OPT term. In many instances, the student would file for B2 non-immigrant tourist status to cover the period of time between the expiration date of their OPT and the October 1st start date of their H1B. The Immigration Service would process the filing, and that would allow the student to remain in the United States while the H1B case was adjudicated and the change of status went into effect on October 1st.
As the volume of the B2 filings increased and the realization that this was a mere stop-gap measure for the applicant, the Cap-Gap came into being. The Cap-Gap allows for an automatic extension of the OPT benefits for the F1 student.
How do I take advantage of the Cap-Gap?
In order to qualify for the Cap-Gap, the foreign national must file a H1B quota case while their OPT period is in effect. The Cap-Gap will also go into effect if the H1B quota is filed during the 60 day grace period following the expiration of the OPT. However, those individuals are not afforded all the benefits of the Cap-Gap.
Is there a Cap-Gap application?
No, the advantages of the Cap-Gap are realized once a properly filed H1B quota case is received by the Immigration Service.
What does the Cap-Gap do?
The Cap-Gap allows the pending H1B beneficiary to remain in their OPT status while their case is being adjudicated. In effect, it allows for the OPT holder to remain in the United States and to continue to work after their OPT status has expired. The work permission ends on September 30th, because the expectation is that the H1B change of status will go into effect the next day.
However, those H1B quota filers who are in their OPT grace period when their cases are filed will still able to take advantage of part of what the Cap-Gap offers. The people in this group are allowed to lawfully remain in the United States until the adjudication of their H1B is completed, but they are not allowed to work during the Cap-Gap period.
Can I travel during the Cap-Gap period?
If you leave the United States while you are in your Cap-Gap period you risk not being able to return until the H1B is adjudicated. The safest course of action is to remain in the United States during your Cap-Gap term.
What happens if my H1B petition is not selected for the quota? Or if it gets denied?
If your petition is not selected for the quota, then you will not be able to take advantage of the Cap-Gap benefits. In addition, if your H1B petition is denied or revoked, then your Cap-Gap benefits end.
I realize that everyone's situation is unique and that my comments are general in nature. So please take the time to address your individual issues with your Immigration Counsel or if you are in need of one, then contact my office.
I will be working on some new H1B tips for the next posting. Thanks for reading.