The upcoming H-1B lottery season will be significantly different than how it has been in recent years. These changes will have a significant impact on F-1 nonimmigrants that are on OPT/STEM OPT that seek to utilize cap-gap to extend their OPT/STEM OPT work authorization until September 30 of the same year in which their H-1B is filed unless the H-1B is denied or withdrawn.
USCIS has announced that they will be conducting an electronic preregistration of all cap-subject H-1B petitions. See https://rnlawgroup.com/h-1b/748-uscis-announces-h-1b-electronic-registration-process-for-next-h-1b-cap-season and https://rnlawgroup.com/h-1b/754-uscis-provides-additional-information-on-electronic-registration-process-for-next-h-1b-cap-season. This preregistration will be conducted from March 1 through March 20, USCIS will then run the H-1B lottery, notify companies of selected registrants by April 1, and then companies will be given a window of at least 90 days to file their H-1B cap-subject petition.
What is cap-gap and how does one qualify?
8 C.F.R. § 214.2(f)(5)(vi) is the regulation which addresses cap-gap. In this regulation, F-1 students can qualify to have their duration of status and OPT extended to expire on September 30 of the same year in which the H-1B is filed. In order to qualify for cap-gap, the following requirements must be met:
- The H-1B petition was filed as a change of status.
- The H-1B was timely filed.
- The H-1B requests an employment start date of October 1 of the same year. This means that if you file your H-1B in the lottery in the spring of 2020, you must request an employment date of October 1, 2020.
- While not listed in the regulation, the OPT must not be expired by the time the H-1B is filed.
Once a student’s DSO learns that an employer has filed a cap-gap eligible H-1B petition, the DSO can update the record to add the cap-gap extension, and the student can continue to work until September 30 unless the H-1B gets denied or withdrawn. A denial or withdrawal of an H-1B ends cap-gap eligibility.
How does the new pre-registration impact cap-gap?
In recent years, the H-1B lottery would be completed in the first week of April with employers filing complete H-1B petitions at this time. Receipt notices for selected cases would start coming in within a couple of weeks of filing, and thus, cap-gap could be applied for fairly quickly. However, with the new pre-registration system, companies will not be able to file a complete H-1B petition until they are notified the registered individual was selected.
USCIS made it clear in the new pre-registration comments and DHS responses, that the selection of a case through pre-registration DOES NOT qualify an individual for cap-gap. In compliance with C.F.R. § 214.2(f)(5)(vi) addressed above, USCIS will still require the entire petition to be filed as a change of status before the F-1 student is eligible for cap-gap.
What should employers do to prepare for the new system and cap-gap?
When companies receive notification that their pre-registrations have been selected, they will be given at least 90 days to file the H-1B petition. When filing in the pre-registration, companies should consider keeping a record of when their prospective H-1B employees OPT expires. Companies should use this to prioritize their filings in order to ensure that F-1 students can take advantage of cap-gap before their OPT expires. Further, companies should consider being prepared with all documents necessary to file the complete H-1B petition so that they can file as soon as possible for employees with OPT that is about to expire. As a note, Reddy & Neumann recommends filing the LCA at the time of registration just to have it ready to go. It can take around 7 days for the LCA to get certified and can significantly delay filing. For example, if an F-1 student has OPT valid until April 7, and the company is notified on March 30, if the company already has a certified LCA, they can finalize the H-1B, mail it, and have it delivered to USCIS in advance of the April 7 date so that the F-1 student can apply for cap-gap.
Again, it is important to note that the registration or the selection in registration DOES NOT qualify an F-1 student for cap-gap, only the filing of the complete change of status H-1B petition requesting an October 1 start date qualifies the F-1 student for cap-gap.
By: Steven Brown
Steven Brown is an attorney in the firm’s H-1B Department and represents our business clients throughout the entire H-1B, H-4, and H-4 EAD process. Additionally, Steven works with clients with Department of Labor Compliance included assistance with wage and hours investigations. Steven prides himself in being able to provide his clients with creative solutions to complex immigration problems.