H-1B Cap Gap and Travel

WHAT IS THE H-1B CAP GAP?
Cap Gap is an automatic extension of F-1 student status for certain foreign students who have a pending or approved H-1B petition, whose petition included a change of status, and whose petitions were timely filed on October 1 (the first date of the fiscal year and the earliest date an alien may begin employment). It should be noted H-1 B petitions (with extensions) may be filed as early as April 1 of the previous fiscal year (e.g., may file April 1, 2013 for the 2014 fiscal year). This automatic extension is valid until the start date of the alien’s employment (given on the H-1B Approval Notice).

PURPOSE OF THE CAP GAP
The Cap Gap is designed to give these students an extension of their F-1 student status so they may remain in the U.S. in lawful status. Otherwise these students would have to return to their country, apply for H-1B status at their consulate, and wait until their H-1B employment began to enter the U.S.

H-1B APPROVAL AND DENIAL
Where an H-1B petition is approved during the Cap Gap the student’s F-1 student status continues until September 30. On the other hand if it is denied, withdrawn, revoked, or not selected, the student has 60 days from the date of rejection or the end of their program (whichever is later) to depart the U.S.
H-1B

TRAVEL & THE CAP GAP
An alien whose F-1 student status was extended under Cap Gap may not travel during the Cap Gap period as they would not be able to return to the U.S. in valid F-1 student status if they travel abroad. According to the ICE policy guidance “Update to Optional Practical Training” dated April 23, 2013, USCIS considers an application for change of status as being “abandoned if the applicant leaves the country while the application remains pending.” Although this guidance does not speak to those aliens whose application has been approved, it is recommended the alien wait in the U.S. during the Cap Gap period (i.e., until October 1).

RECOMMENDATIONS FOR TRAVEL
It is suggested that if an alien desires to travel abroad that he do so in September so he may apply for H-1B status at a U.S. consulate. This would allow the alien to enter the U.S. on or after September 20 (which is 10 days before the date H-1B employment may begin). It should be noted that an alien may enter the U.S. 10 days prior to the start date of their H-1B status.
As always, if you have any questions regarding the law it is best to seek the help of an attorney. Do not risk being out of status or not being able to return to the U.S. as you plan.

By: Elizabeth Oaxaca
Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.