OPT Cap-Gap Benefit for F-1 Students in FY2010
Posted Dec 26, 2008
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As we enter the H1B "cap" filing season for Fiscal Year (FY) 2010, it is appropriate to review a beneficial regulation put into place during the prior FY to address a problem known as the "cap gap" for students. The cap gap is typically faced by F-1 students transitioning to H1B status. It exists when there is a gap between the time the student's F-1 status expires and the permitted start date for the H1B status. Without cap-gap relief, many students are faced with the prospect of either having to leave the U.S. between the end of their F-1 status and the beginning of their H1B, or finding a way to bridge the gap with an interim status by, for example, enrolling in school again. Students can take advantage of the cap-gap relief if they satisfy certain conditions outlined in this article.
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Cap Gap Relief was Uncertain
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In previous years, the USCIS made a determination, providing cap-gap relief to F-1 students on a year-to-year basis. It was not always given, and, even when granted, the timing of the announcement of the relief was not helpful to many students, creating uncertainty for those who had to make alternate plans to remain in the U.S. Fortunately, the cap-gap relief was firmly established when F-1 regulations were issued by the DHS in April 2008. This relief is not subject to annual review and does not need to be renewed each year. Thus, it is in place and can be part of the planning for students for FY2010.
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Requirements for F-1 Cap-Gap Extension
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The cap-gap regulation provides an extension of status and work authorization for F-1 students under certain conditions. There are three requirements that must be met. First, the F-1 student must be the beneficiary of an H1B petition filed while s/he is within the period of Optional Practical Training (OPT) and the student must not have violated his/her status. Second, the H1B petition must request a change of status within the U.S. (as opposed to requesting consular processing). Third, the H1B petition must request an October 1st start date.
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F-1 Cap-Gap Benefit Extends to F-2 Family Members
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If the case meets all three requirements, then the student's status, as well as his/her work authorization, is automatically extended until either October 1st or until the H1B cap case is rejected, denied, or revoked. This extension only continues until the earlier of the listed events. Rejection includes not being accepted in the H1B lottery. If the F-1 status of the principal is protected under the cap-gap provisions, the F-2 status of family members also is extended automatically, as per the regulations.
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Conclusion
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This relief will not help all students transitioning to H1B status, but it will provide significant assistance to many. For those with cases that fit within the required timeframes, it will eliminate the need either to leave the U.S. or find a way to bridge the gap.