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Foreign Students and the H-1B Cap Gap

With the school year coming to a close, it’s time for foreign students to start thinking on ways to continue to remain in the United States, following the conclusion of their academic programs. Some college students on F-1 visas who are authorized to work pursuant to the Optional Practical Training (OPT) program are able to find jobs in their field of study and may continue to remain in the US their stay on an H-1B visa. However, moving from an F-1/OPT directly to H-1B can create a gap of time between the expiration of the OPT and before the H-1B visa starts. Fortunately there is a Cap-Gap, which allows applicants with pending or approved H-1B’s to extend OPT work authorization to cover this gap.

What’s required for an F-1 extension?

students-1197349-mIf you’ve secured an employer that will apply for an H-1B on your behalf, it’s essential that the H-1B is timely filed. The H-1B should be applied while the OPT is still in effect.

If the H-1B application is selected in the lottery and approved, an automatic F1/OPT extension will take place. On October 1st when the H-1B visa can officially take effect, the applicant should request a change of status. This will allow for a smooth transition from F-1/OPT to H-1B.

Things to watch out for

  • If the H-1B application is not chosen in the CAP or the H-1B application is denied, the applicant will be granted a 60-day grace period. During this time the applicant must make plans to leave the United States.
  • Once an applicant enters the 60-day grace period, the applicant is no longer authorized to legally work inside the United States.
  • Travel abroad during the OPT period is allowed, however the applicant will not be able to re-enter the United States without a valid F-1 visa, as stamped on the passport. Students are advised to have their latest I-20’s, as well as proof that they are employed pursuant to their OPT, in the event of foreign travel. If the applicant does not have a valid F-1 Visa, the applicant must apply for an H-1B visa at consular post outside of the United States before attempting to re-enter.
  • F-1 extensions are generally granted until September 30th. However, the H-1B employer may intend for employment to start later than October 1st which can create another gap. Should this happen, the Designated School Official of the student on F-1 can fix this gap. It is important to pay close attention to the start day of H-1B visa and end date of F-1.
  • Getting laid off by an H-1B employer before H-1B visa takes effect does not mean the applicant has forfeited his visa and must exit the United States. The student may be able to recover unused Optional Practical Training and continue working in the United States, as long as several additional requirements are met.

To ensure you are eligible for F-1 extension under cap gap it is important to be cautious of timelines and required paperwork. Because there is a transition from one visa to another, accuracy is important to ensure the applicant does not find himself in the United States without a valid visa status. Consulting an attorney is a good idea to ensure all filings are done correctly.

Contact the Law Office of Sweta Khandelwal today to discuss F-1 student visas, H-1B’s the Cap-Gap or any other immigration questions you have. Ms. Khandelwal is an experienced immigration attorney located in the Silicon Valley.

 

Cited Sources:

Extension Of Post Completion Optional Practical Training (OPT) and F-1 Status forEligible Students under H-1B, USCIS, March 15, 2013

 

 

Tags: #F-1, #h-1b, #immigration law, #immigration law attorney, #immigration law lawyer




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