Every year, 85,000 hopeful foreigners receive the opportunity to legally stay and work in the United States for three years through the H-1B Visa, with the possibility of extension for another three years. However, there are several dates and rules that accompany this opportunity which we will unveil for you below.
What is a Cap Gap?
- The term is used in reference to the period between learning that your H-1B case was picked and when your H-1B status becomes active. Normally, the H-1B status becomes active on October 1st of the fiscal year for which the applicant has applied for the visa. However, in most cases, the OPT status of students expires in the preceding summer, so applicants need to extend their OPT status to continue to work until they receive a decision on their H-1B application.
Can you work or continue to work during Cap Gap?
- Yes. Once you learn of the selection of your H-1B, you can continue to work under your OPT status, until your H-1B status is activated in the upcoming month of October.
- Note: often times, the OPT status will expire before the H-1B is activated. In this case, if the government has not extended your OPT status, then it is your responsibility to contact your school or university and request an extension. Plan ahead if you will be requesting an extension from your school, as depending on the international office of your school, the process may take some time.
Can you work if you do not receive final approval, RFE, or denial result by the time H-1B becomes active (October 1st)?
- In some cases, especially given the large number of applications, applicants find their Cap Gap expiring while their H-1B application is still pending. If this is the case, you can only work until September 30th of the given year or when your Cap Gap expires. You will then have to wait for USCIS to render a final decision on your case, but you cannot be performing any work for pay in your position until you receive approval of your H-1B.
*Note: If your initial OPT has expired and you are in your Grace Period when you submit your H-1B case, you can still get an OPT Extension, but you may not work. Also, if you get your H-1B denial notice before your OPT Extension expires, your OPT Extension becomes invalid immediately and you will have up to 60 days to change your status, find another means of legal stay, or leave the country.
*Note: These tips are primarily appropriate for non-STEM students, as STEM students are eligible for other routes and opportunities.
For your individual case or personal concerns, feel free to reach out to Law Office of Ross Yang for additional assistance.