The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. There are a limited number of H-1B petitions that USCIS can adjudicate every year (65,000 Regular Cap petitions and additional 20,000 U.S. Advanced Degree Petitions). Every year, more petitions than these congressionally mandated amounts are submitted and therefore, the government has to run an H-1B lottery. The government uses a computer-generated random selection process to select the H-1B petitions. The H-1B lottery for this year has been completed.
If your H-1B petition was selected in the H-1B lottery and is eventually approved, the earliest date you can start working for your employer on H-1B status is October 1.
If your J-1 trainee status expires before October 1, you may be wondering whether you can stay in the U.S. until October 1 or whether you will have to leave the U.S.
What is Cap-Gap? Does the Cap-Gap extension apply to me if I am currently in the U.S. on a J-1 trainee visa?
No. The Cap-Gap extension only applies to people who are currently in the U.S. on F-1 OPT status, who were selected in the H-1B lottery, where their employer filed an H-1B Change of Status Petition. Under cap-gap, these applicants can remain in the U.S. as long as their H-1B petition is pending. For students in F-1 status who are not participating in OPT or whose OPT work authorization expired prior to the filing of the H-1B petition, they are permitted to remain in the U.S. while the petition is pending, but they are not able to work. For F-1 students whose OPT work authorization is still valid when their H-1B petition is filed, they will be able to stay in the U.S. and work for the employer on F-1 status until September 30, and then change status to H-1B on October 1. If their petition is denied prior to September 30, their work authorization would stop. Additionally, if the H-1B petition is not adjudicated by September 30, they would be able to remain in the U.S. as long as the petition is pending but they would no longer have work authorization until the H-1B petition is approved.
Can I apply for a Change of Status from J-1 to H-1B with USCIS or should I apply for an H-1B visa at a U.S. Consulate?
This depends. Many J-1 program sponsors make you sign a document attesting that you cannot apply for a Change of Status from J-1 status to some other visa category with USCIS. Some J-1 program sponsors also make the employers sign a document attesting that the employer will not sponsor J-1 visa holders for any other visa. You should check the documents you signed with the program sponsor to see if a Change of Status through USCIS would even be possible, or if you will have to apply for the H-1B visa through Consular Processing.
If you will have to apply for the H-1B visa at a U.S. Consulate, you will have to leave the U.S. within 30 days after your J-1 status expires. Once the H-1B petition is approved by USCIS, you can apply for the H-1B visa, and the earliest you can start working for the H-1B employer is October 1, 2020.
I want to apply for a Change of Status from J-1 to H-1B and my J-1 status expires before October 1. Can I stay in the U.S. or do I have to leave?
Example 1
If your J-1 status expires on September 2, 2020, you will have a 30-day grace period during which you can stay in the U.S. This means that your 30-day J-1 grace period would end on October 2, 2020 and you would be maintaining J-1 status up until your H-1B change of status took effect on October 1, 2020. In this example, you could apply for a change of status and remain in the U.S.
Example 2
If your J-1 status expires on June 1, 2020, you would only be allowed to stay in the U.S. on the J-1 grace period until July 1, 2020 (but you would not be allowed to work after June 1). You would then have to leave the U.S. as your J-1 status in the U.S. would expire and your H-1B status would not take effect until October 1, 2020. This means that during the time between July 1, 2020 and October 1, 2020 you would not be maintaining status. In this example, the change of status would be denied because you must be maintaining status in order to change status. However, even if the change of status part of the application is denied, the H-1B petition can still be approved and you could go to a U.S. Consulate to get the H-1B visa stamp.
The question that arises is: Can I stay in the U.S. on some other status in the period from July 1, 2020 until October 1, 2020?
If leaving the U.S. is not feasible for some reason, you could try to apply for a change of status from J-1 to B-2 (visitor status) to bridge the gap in your status. USCIS considers these bridge filings on a case-by-case basis. When filing the bridging application, you will have to show that you were lawfully admitted to the U.S. on the J-1 visa status, you maintained your status since admission, and you meet the requirement to change to B-2 status. The fact that you want to remain in the U.S. to await the opportunity to change status to H-1B and accept employment does not undermine your eligibility for visitor status.
If you were not selected in this year’s H-1B visa lottery, please read our blog post to find out whether you could apply for some other visa.
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