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Considerations for Employers and F-1 Students Regarding the Cap-Gap Extension

Two years ago, USCIS changed the way it runs the H-1B lottery process. Since these changes do not require an immediate filing of an H-1B petition, it is important for F-1 nonimmigrants that are on OPT/STEM OPT that are looking to utilize cap-gap to understand what needs to be done to qualify for cap-gap and it is important for employers to make sure they submit timely filed H-1B cap petitions in order to qualify the F-1 student for cap-gap.

This year’s H-1B electronic registration for the H-1B lottery was completed on March 25th, and USCIS began notifying employers of their selections on March 27th. Companies who had their cases selected were given a 90 day window starting April 1 to file the complete H-1B petition. It is important to note, as will be discussed more below, that the registration or even the selection alone does not qualify a person for cap-gap. Their employer will be required to file a complete H-1B petition with USCIS in order to be eligible for cap-gap.

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 30th of the same year in which the H-1B is filed. In order to qualify for cap-gap, the following requirements must be met:

  1. The H-1B petition was filed as a change of status.
  1. The H-1B was timely filed.
  1. 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 2021, you must request an employment date of October 1, 2021.
  1. While not listed in the regulation, the OPT must not be expired by the time the H-1B is filed.

When SEVIS receives data about a pending H-1B petition from USCIS, SEVIS should update the record to show the cap-gap extension. However, if SEVIS failed to update the system, the designated school official (DSO) can request a data fix with the SEVP Response Center to add the cap-gap extension to the student’s record. With the cap-gap notation, the student can continue to work until September 30th unless the H-1B gets denied or withdrawn. A denial or withdrawal of an H-1B ends cap-gap eligibility. 

How does the H-1B electronic registration system impact cap-gap?

            In previous 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 implementation of the H-1B electronic registration system in 2020, 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 H-1B registration regulation comments and DHS responses, that the selection of a case through the registration system 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 and meet all other requirements before the F-1 student is eligible for cap-gap. 

What should employers do once they receive selection notices?

            When companies receive notification of their selected registrations, they will be given at least 90 days to file the H-1B petition. Employers need to prioritize their filings in order to ensure that F-1 students can take advantage of cap-gap before their OPT expires. Further, employers 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. Reddy & Neumann recommends filing the LCA as early as possible in order to prepare for those selected cases that may need a quick turnaround because of OPT expiration. 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 May 1st, and the company was just notified of their selection on March 27th, if the company already has a certified LCA, they can finalize the H-1B, mail it, and have it delivered to USCIS way in advance of the May 1st date so that the F-1 student can be eligible for the cap-gap extension.

            Again, it is important to note that the registration or the selection in registration DOES NOT qualify an F-1 student for cap-gap. It is important for employers and their employees currently on F-1 status to work together to ensure timely filing of their H-1B cap petition and to remain mindful of the OPT expiration date.  If you have questions about whether a situation qualifies for cap-cap, contact a Reddy & Neumann attorney.

By: Steven A. Brown & Kristina M. Hernandez