F-1 Students, the H1B Lottery and Cap-Gap: What You Need to Know

Applicants to this year’s H1B visa annual lottery are still awaiting the results, and many of those hopeful foreign workers simply wait in their home country to see if they were selected.  However, the situation is more complicated for students with F-1 status that applied while still in the US and were still under their student status.

The H1B visa program is attractive to both Bachelor’s and Masters degree candidates studying in the US, since it potentially allows them to remain and work for US companies.  Further, there is an expressed intention by USCIS to try to retain foreign students that have gained a technical US education.

But, the transition from student to foreign worker status is not always seamless, and the important goal is to maintain some type of valid visa permission to stay in the US during the interim.  Some students will simply choose to go home for a visit and await the outcome, but those still studying or working OPT have other options.

The Cap-Gap: From F-1 to H1B Status

F-1 students apply for the annual lottery just like anyone, and there is no special priority given.  The question is how does an F-1 student deal with the ‘cap-gap’ or period of time when their student status expires and their H1B visa becomes valid (if they are selected under the annual cap of 85,000 visas).

The basic rule is that a current F-1 student with an approved or pending H1B petition can remain in their F-1 status and be technically work authorized during the ‘cap-gap’ up to October 1, 2018.  However, they cannot begin the H1B position until that date, but can continue with OPT work and don’t have to leave the US.

Here are more details:

• The H1B petition must be filed while their F-1 status is still valid
• This time window of valid status can include the standard 60-day grace period following expiration of F-1 status
• However, if the petition is filed during the grace period, then the student is not ‘work authorized’, and instead will receive an automatic extension of their F-1 status while the petition is pending
• The petition must request a change of status to H1B on October 1, 2018

Other Points to Consider: Travel, Denial and OPT Work

• Travel outside of the US is not recommended since it may complicate their visa status conditions, unless they choose to wait at home for notification
• If the H1B petition was filed under consulate notification, then the student would have to leave the US when their normal 60-day grace period expires and await the visa in their home country
• If the H1B visa petition is denied or rejected, the student will have 60 days to leave the US from the date of the denial
• If the student is working with an F-1 OPT work authorization while awaiting H1B approval, they can only be unemployed up to 90 days (with a one-year approval) 

As you review all of these issues, it becomes apparent that sound advance planning is needed to avoid any problems with a student’s immigration status.  Cutting it too close could mean expiration of visa status while simply waiting for approval, so review the options to stay legally or simply plan a visit home and re-enter the US once the H1B approved and the start date for work has arrived.

• July 9th, 2019
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