New H-1B CAP process: Impact on OPT "CAP GAP"

The upcoming H-1B CAP lottery process, which is a novel process being implemented by USCIS this year, 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. The "cap gap" regulation (8 C.F.R. § 214.2(f)(5)(vi)) provides that 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 was timely filed.

  • The H-1B petition was filed as a change of status.

  • The H-1B requests an employment start date of October 1 of the same year.

Additionally, 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. However, a denial or withdrawal of an H-1B ends cap-gap eligibility. 

This year, USCIS has announced that they will be conducting an electronic preregistration of all cap-subject H-1B petitions. This preregistration will take place 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 at least 90 days to file their H-1B cap-subject petition. Under this new preregistration system, companies will not be able to file a complete H-1B petition until they are notified the registered individual was selected. In addition, USCIS has indicated that the selection of a case through pre-registration DOES NOT qualify an individual for cap-gap. 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. 

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 keep track of when their prospective H-1B employees OPT expires and make sure that they prioritize filings of F-1 students so that they can take advantage of cap-gap before their OPT expires. Companies should be completely prepared to file the full H-1B petition once they receive notification from USCIS that their preregistration was selected in the lottery. It may even be best to file the LCA at time of preregistration to ensure that the full H-1B petition can be filed within days of receiving notification from USCIS. It is critical to be prepared and informed.

This post is for informational purposes only. Please contact our office for a consultation on your specific matter.



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