Certain foreign students with pending or approved H-1B petitions (filed by prospective employers) can maintain their F-1 status until the start of their approved H-1B employment period (Oct. 1 of the each Fiscal Year) even when their F-1 status and OPT expire. In other words, the U.S. Immigration regulations provide a way to fill the “gap” between F-1 and H-1B status for qualifying foreign students, which might otherwise occur and place foreign students in “out of status.”
A “gap” can occur because H-1B employers cannot file an H-1B petition earlier than six months prior to the H-1B workers’ start date under current regulations. That is, the earliest date that an H-1B employer can file an H-1B petition to hire foreign worker(s) is April 1 for the following fiscal year, and the employment starting date is October 1. USCIS Fiscal year (twelve-month period) begins October 1 and ends September 30.
In order to qualify for this gap extension, foreign students (F-1 status) must be the beneficiary of an H-1B petition that 1) is timely filed, 2) with an employment start date of October 1 2015, and 3) that requests a change of your status from F-1 to H-1B. Additionally, you must not have violated the terms/conditions of your F-1 status, and you must be on a period of post-completion OPT.
If all of these requirements are satisfied, the cap-gap extension begins and continues until the H-1B petition adjudication process is completed. However, note that the cap gap extensions are given in increments as the petition goes through the steps of filing, receipting, and adjudication. For example, if an H-1B petition is properly filed, the student’s OPT will be extended to June 1; and if the petition is selected for receipting, the student’s OPT authorization will be extended to September 30. If the petition is withdrawn or denied, the student’s OPT authorization will end 10 days after the date of the withdrawal or denial and you will have the standard 60-day grace period from the date of the rejection notice or your extension, whichever is later, to leave the U.S. In addition, if F-1 students are on post-completion OPT, their OPT will not expire prior to the filing date of the H-1B petition. Therefore, students can continue working during the extension period they will be given.
If you have any questions about the Change of Status from F-1 to H-1B and process and procedures in general, please contact Sujin Kim, Esq. at (251) 387-2544/(251) 379-8065 or skim@gcimmigration.com