An H-1B petition may be filed not earlier than April 1 of any given year or six months before the start of the following fiscal year on October 1. In some cases, the F-1 status or Optional Practical Training (OPT) period of a student who is a beneficiary of an H-1B petition expires before October 1. The cap-gap provision addresses this problem and grants an automatic extension of the F-1 status and OPT period allowing the student to remain and work in the United States.
To be eligible under the cap-gap provision, the F-1 student must be a beneficiary of a timely filed petition requesting change of status to H-1B with an employment start date of October 1. Those benefiting from this provision should be aware of the repercussions of travelling abroad during the cap-gap period.
The USCIS construes travelling outside the United States during the cap-gap extension as an abandonment of the application for change of status. Leaving the United States during this period will mean not being able to re-enter the U.S. as a student and being required to obtain an H-1B visa at a U.S. consulate abroad.
The H-1B petition filed on behalf of an F-1 student on OPT who leaves the U.S. during the cap-gap period may still be approved by the USCIS; however, the application for change of status will be considered abandoned. He will not be able to return to the U.S. immediately as he will be required to undergo normal visa application process abroad which could be subject to delays and longer wait.
An F-1 student who is on OPT with a valid Employment Authorization Document (EAD) through October 1, on the other hand, may travel outside the United States and should be able to re-enter. Documents required to be readmitted as a student include a valid passport with a valid F-1 visa stamp, Form I-20 endorsed for travel by a designated school official (DSO), a valid EAD and a letter of OPT employment. Keeping these documents always in hand while travelling will avoid delays at the port of entry.
The number of days spent overseas must be considered when travelling during OPT. The maximum number of days for unemployment during OPT is 90 days. This includes days spent travelling abroad unless it is a leave authorized by the OPT employer or is part of the OPT. The F-1 student must carry the letter from the OPT employer when travelling to avoid delays or difficulties when inspected at the border.
An F-1 student who already finished his course of study may remain in the United States during the cap-gap period. The cap-gap period automatically extends his F-1 status provided the H-1B petition was filed before his course of study ended. The cap-gap period starts from the time when his course of study ended including the 60-day grace period.
An F-1 student who is still in school through October 1, on the other hand, may travel abroad and re-enter the U.S. even with an approved H-1B petition and change of status application. He must however bring the required documents and be able to prove nonimmigrant intent. He must be in the U.S. on October 1 when his change of status to H-1B takes effect.
Obtaining a new F-1 visa abroad to re-enter the U.S. with an approved H-1B petition will be very difficult. Because a professional job in the U.S. contradicts nonimmigrant intent required for an F-1 visa, the visa application may be denied.
Some F-1 students may want to apply for their H-1B visa abroad. In this case, they should consider the processing times at their respective U.S. consulates. If they are issued their visas abroad, they may re-enter the U.S. ten days prior to the employment start date on October 1.
J-1 exchange students unlike F-1 students are not covered by the cap-gap provision. However, change of status to H-1B for J-1 exchange students will not be a problem if their authorized stay in the U.S. remains valid through October 1 or when the change of status to H-1B takes effect.