The H-1B "CAP-GAP" and the F-1 Student

The cap of 65,000 H-1B petitions for FY2011 has been reached. As a result, one must wait to apply for H-1B status under the new quota for FY2012, starting October 1, 2011. The earliest an H-1B petition can be filed for the new fiscal year is April 1, 2011, requesting an October 1st start date. For certain F-1 students, this interim period creates what is termed the “cap gap” as their status may lapse before their H-1B status can commence on October 1st. Current regulations provide relief to students by allowing an extension of F-1 status and work authorization for those students who are the beneficiaries of a pending or approved H-1B petition.

Upon the submission of a timely filed H-1B petition, the automatic cap gap extension will apply and the F-1 student will continue to maintain valid duration of status until the effective date of the H-1B approved status. Individuals under post-completion OPT at the time of filing will also receive extended work authorization through September 30th under the cap gap provisions. F-1 students with H-1B petitions that remain pending beyond October 1st are allowed to legally remain in the U.S. but their work authorization will cease. Please note that students who are within the 60 day grace period and have already completed their OPT by the April 1st filing date will also benefit from the automatic extension of their duration of status, but will not receive extension of their work authorization. For example, F-1 students whose OPT expires in February 2011 will qualify for an extension of their F-1 status while their H-1B petition is pending, but will not qualify for an extension of their work authorization as their OPT will have expired prior to April 1, 2011. However, F-1 students whose OPT is valid until July 2011 will qualify for both an extension of their F-1 status and extension of their work authorization until September 30, 2011.

For more information on filing a timely H-1B petition on April 1st and qualifying for F-1 extension of status and work authorization under the “cap gap,” please contact our offices at:

Law Office of Amanda R. Goodman
1133 Broadway, Suite 706
New York, New York 10010
Phone: 516-647-5937

Congratulations Graduates!

Many foreign students in the United States have just graduated and more are on their way! In a report for the State Department the Executive Vice President of the Institute for International Education stated, in reference to both China and India, “I think we’re going to be seeing 100,000 students from each for years to come with an increasing share of them being undergraduates.” In fact, the number of international students at colleges and universities in the United States last year increased by 8% - with more than 617,000!

The most common foreign student approach is:

F-1 à OPT à H-1B à Labor Certification.

The F-1 visa is the most common education study visa and in many cases, upon the completion of a full-time program, foreign students will be able to remain in the United States to pursue “optional practical training” (OPT) which is a limited work authorization directly related to their field of study. Generally, a student in valid F-1 status may be authorized for 12 months of OPT and in some cases, an additional 17-month extension.

After OPT, many foreign nationals are sponsored by their OPT employers for an H-1B or are able to secure sponsorship for the same, through another employer. The clearest advantages of the H-1B is that it applies to a “specialty worker,” a classification held by a post-OPT professional and it carries dual intent – seemingly a perfect fit! However, the following considerations must be made.

First, The H-1B requires that the focal point of study coordinate with the function and purpose of the H-1B employment. This creates a gray area for individuals with liberal arts degrees or innate talents. For instance, an economics major with OPT experience at UBS is more eligible for a H1-B job as a financial analyst, than an English major who is considered a finance whiz. Despite innate talents that perhaps exceed paper credentials, the course of study must accord with the H1-B employment.

Second, it is also important to consider the fees associated with the H1-B petition as well as the restrictions and limitations on its issue. USCIS permits 58,000 “new” H1-B visas, which is referred to as the “cap.” Once you have received an H-1B under the cap, subsequent extensions are not counted toward the cap. This means that initial H1-B applicants must be mindful and prepared to file their petitions at the most advantageous time, unless they are working for a “cap-exempt” employer such as a non-profit or higher education institution. This requires preparation and foresight.

Finally, the fees associated with the H1-B are an increasing concern for employers, which makes securing a sponsor increasingly difficult. Private employers are required to pay a $1,500 training fee, $500 fraud prevention fee, and a filing fee of $190. In addition, the employer must go through a great deal of administrative work as well as make many legally enforceable “attestations” in order to sponsor an H1-B employee.

Once you overcome the above-mentioned hurdles and begin working for your H1-B employer you may begin the permanent residency process. Permanent residency applications seem overwhelming but can actually be broken down into four simple categories: (1) Employer Sponsor, (2) Family Sponsor, (3) Special Congressional Programs, and (4) Asylum. For the purpose of this article, only the general concept of employer-sponsored residency will be considered.

Once you are an H1-B worker, an employer may sponsor you for permanent residence. This application requires that the employer show that after an advertising campaign and genuine search of the labor market, they could not find a qualified U.S. employee for the position. This is tricky – if a qualified U.S. citizen applies and is able to fill the needs of the position, then a labor certification cannot be granted. In some cases though, the labor certification process can be waived entirely. This pertains to high-level researchers conducting work that benefits the national interest. Equally, there are categories for “extraordinary” or “exceptional” ability and are applicable to most fields of work. These petitions also by-pass the labor certification requirement.

Graduating students should always be mindful of the following:

(1) Even a small violation of the immigration laws can cause significant problems in the future. Be sure to maintain a complete and accurate record of your immigration history.

(2) Each time you leave the United States your re-entry is viewed as an application for re-admission. Be sure to carry copies of all required documents.

(3) Your employer’s lawyer works for your employer, not you. Be sure to consult an attorney practicing exclusively in immigration in order to optimize your interests.

(4) Visas issued abroad are regulated by the State Department whereas visas issued in the United States are controlled by CIS. Be sure to consider the intricacies of consular processing.