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OPT, Cap-Gap, and H-1B Beneficiary Change of Employer Prior to October 1st

By June 16, 2017May 18th, 2021H-1B and E-3 Visa, Immigration

“Cap Gap” is the government’s solution to a problem that many F-1 students on Optional Practical Training (OPT) who had successfully filed an H-1B petition faced:  many OPT periods end in the early summer, and even with the provision of a 60-day grace period, the earliest permitted H-1B employment start date of October 1st would lie too far in the future.  This “gap” – the period of time between the end of F-1 status and the beginning of H-1B status – necessitated the OPT student’s return to their home country to seek re-admission as an H-1B visa holder.

Seeking to correct this in the code, the USCIS implemented a “Cap-Gap” provision providing an automatic extension of F-1 status through to October 1st for F-1 students who are H-1B beneficiary’s and have (i) timely filed an I-129 request for a change of status, and (ii) have requested an employment start date of October 1.    This provision effectively filled the “gap” between F-1 status and H-1B status.

While the USCIS has laid out steps for F-1 students under Cap-Gap who are either terminated or laid off by the H-1B employer before H-1B status takes effect on October 1st, there is no official guidance on whether or not the code permits for the F-1 student to change employment during the Cap-Gap period.  Despite the impressive run of luck required win the H-1B lottery, we have consistently been fielding inquiries from individuals seeking to change their H-1B employer during their Cap-Gap period.  Due to the lack of codified language discussing this scenario and the absence of any guiding memoranda or advisory opinions, we are left with anecdotes from USCIS trends and results from adjudications.

Our experience and that of the majority of practitioners suggest that the earliest an F-1 student under Cap-Gap could change employers would be on October 2nd.  (H-1B Beneficiary’s status starts on October 1st; a new H-1B petition is immediately filed and H-1B portability provisions permits for the Beneficiary to begin the new employment upon the USCIS’ receipt of the petition.)  For the most part, this is due to the general assumption that the F-1 student is working for the original H-1B employer on OPT and that the original H-1B employer could or would withdraw the underlying application upon learning that the student intends to change employers. The withdrawal of the petition could lead to USCIS revoking the H-1B approval, thereby killing the H-1B Beneficiary’s ability to port directly to a new job.

It should be noted that some F-1 students have successfully changed H-1B employers while on OPT by arguing that the H-1B petition for the new employer should be exempt from the H-1B cap, as the applicant was already counted in the H-1B lottery, even if they have not yet changed to H-1B status. However, the USCIS does not always accept this argument. Additionally, this approach would not work if the original H-1B petition was withdrawn by the employer and the approval was then revoked by the USCIS. The inconsistencies in USCIS trends and adjudication results indicate that changing employers during OPT is a risky choice, however, it is a potential option as long as the H-1B Beneficiary is willing to risk losing H-1B status due to the withdrawal of the original petition and/or potential denial of the new H-1B petition or rejection of the argument that the new petition is exempt from the cap. Until the USCIS issues more concrete guidance on this matter, an applicant runs a risk as to whether or not the USCIS permits for such a transfer.

At Scott Legal P.C., we counsel the F-1 student under Cap-Gap to wait until H-1B status commences on October 1st, and then file a petition for a new H-1B employer.  October may feel a long way off, but we feel quite certain that losing H-1B status due to an employer’s withdrawal of the underlying petition would feel a good deal worse.

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