F-1 student visa holders in the United States whose status expires after April 1, 2015, but whose H-1B cap petition was timely filed (between April 1 and 7, 2015) requesting an October 1, 2015 start date, will have a “gap” between their authorized status and October 1. To fill this gap, US Citizenship and Immigration Services (USCIS) issued “cap-gap” rules that automatically extend the F-1 student’s status and work authorization, under the conditions discussed below.
Under the cap-gap rules, only students whose H-1B status will become effective on October 1 are eligible for an extension of their F‑1 status. Students whose effective H-1B date is after October 1 must depart the United States and apply for a visa at a consulate abroad, before seeking readmission to the United States as an H-1B visa holder.
How to Ensure Your Employees are Maintaining Valid F-1 Status and Employment Authorization During the “Cap-Gap”
A student is eligible for a cap-gap extension when an employer files an H-1B petition (i) any time during an F-1 student’s academic study, (ii) during an authorized period of post-completion Optional Practical Training (OPT) or (iii) during the 60-day grace period that the student has to depart the United States following the completion of the OPT period. All students whose H-1B petitions are timely filed will automatically receive a cap-gap extension.
The H-1B category has a quota of 65,000 visas, plus 20,000 for US master’s degree graduates. Because more than 233,000 petitions were filed, all cap petitions were placed in a lottery for selection. The determination of the length of the cap-gap extension and whether it includes employment authorization depends on whether the H-1B petition is selected in the lottery and whether the student is working pursuant to OPT or has already entered the grace period.
- If the H-1B Cap Petition is Selected in the Lottery for Adjudication:
- If a student was validly authorized to work pursuant to OPT at the time the H-1B petition was timely filed, the student qualifies for both an extension of F-1 status and OPT. Upon approval of the H-1B petition, the cap-gap rule will automatically extend the student’s status through September 30, 2015.
- If a student’s OPT expired and the student had entered the 60-day grace period following that expiration when the H-1B petition is timely filed, the student qualifies for an extension of the F-1 status but is not granted an extension of work authorization. Upon approval of the H-1B petition, the cap-gap extension will be valid through September 30, 2015.
- If, in either of the above situations, the H-1B petition is selected in the lottery for adjudication, but the petition is ultimately denied, the student will have the 60-day grace period within which to depart the country, unless alternative visa options are available. The grace period is effective from the date of the notification of denial.
- If the H-1B Cap Petition is Rejected in the Lottery:
- Any student whose H-1B petition is not selected in the lottery will maintain in F-1 status until the latter of the expiration date of the OPT or the date on which the H-1B petition is rejected. The student would then have the normal 60-day grace period within which to depart the United States.
What Employers Need To Do to Ensure I-9 Compliance During the “Cap-Gap” Period
Employers of foreign students who have expiring Employment Authorization Documents (EAD) are required to re-verify the students’ employment authorizations pursuant to I-9 regulations. For a student who has continuing employment authorization based on the cap-gap rules, employers may accept an expired EAD if accompanied by the student’s Form I-20 endorsed by the Designated School Official (DSO) with the cap-gap extension. The EAD’s title, number and expiration date must be recorded in Form I-9 with a notation of “cap-gap” in the margin of Section 2. These employment re-verification documents are acceptable through September 30, 2015. The employer must re-verify the student’s I-9 Form on October 1 when the H-1B status becomes effective.
How Students Prove Continuing Status and Employment Authorization
Because of these I-9 reverification requirements, students must take action if their EADs will expire prior to the October 1 effective date of their H-1B petitions. A student should take a copy of the H-1B petition and a FedEx, UPS, or USPS Express receipt (proving the H-1B petition was mailed to USCIS) to their DSO. Per 2013 USCIS guidance, this documentation should be sufficient for the DSO to issue a preliminary cap-gap I-20 extension until June 1, 2015.
If the H-1B petition is selected in the lottery, the student must then provide to the DSO a copy of the H-1B Receipt Notice (Form I-797 Notice of Action) bearing the receipt number. The DSO will then issue a new cap-gap I-20 extension indicating the continued extension of F-1 status until September 30, 2015. As noted above, these updated Form I-20s are required for I-9 employment verification purposes.
On the Horizon: What Should Employers Do When F-1 Students’ H-1B Petitions Are Not Selected in the H-1B Lottery
In the coming weeks USCIS will be returning all H-1B cap petitions not selected in the lottery. We recommend that employers identify students whose H-1B petitions were not selected in the lottery to determine when their work authorizations and F-1 status expires. To see additional strategies companies may wish to pursue, please see our article “So Your H-1B Petition Is Not Selected — What Now?” that was published in Law360.