As explained more fully below, the "cap gap" refers to the situation in which a non-citizen student is lawfully in the US on an F-1 student visa and is successful in obtaining an H-1B work visa which permits lawful entry in the US, but only long after the F-1 residency period has ended. The "cap" refers to the fact there is an upper limit on the number of H-1B visas issued per year and the "gap" refers to a potential loss of lawful residency status in the US after the F-1 visa ends but before the H-1B employment begins. Here is a more detailed explanation.
Non-citizens can lawfully be in the U.S. for academic learning under an F-1 student visa. The F-1 visa is for academic institutions like colleges, universities, high schools, language training programs and other institutions. Since F-1 visas are meant for students, there are strict regulations that prevent F-1 visa holders from being employed. Generally, F-1 visa holders can ONLY work at college/university campus jobs for no more than 20 hours a week. There are a couple of other narrow exceptions for training programs.
The typical “Duration of Status” for a student’s F-1 visa is from 30 days prior to the beginning of the academic program and until 60 days after the completion of the academic program. At the end of the 60 days, the F-1 visa holder must depart the U.S.
By contrast, an H-1B visa is for noncitizens who have been sponsored by an employer for work in the US. As their academic study comes to an end, many F-1 student visa holders apply for employment in the US and seek to obtain an H-1B visa so that they can remain in the U.S. lawfully for work. In general, H-1B visa holders may not enter the US until 10 days before the start of their employment.
Since many academic institutions finish their educational programs in the spring of each year, an F-1 visa may expire in mid-summer. This creates a "gap" in residency status for any F-1 visa holder who is able to obtain an H-1B visa. Generally, a person successfully obtaining an H-1B visa cannot begin work until October of the year in which they obtain their work visa.
The situation is made more complicated by the fact that H-1B visas are limited in number each year. Because of that, those seeking an H-1B visa participate in a visa "lottery." Those seeking to participate in the H-1B visa lottery must file their visa petitions during the first five days of April each year. But, as noted, any successful participant in the lottery will not be able to work under their H-1B visa until October of the lottery year. This creates what is called the “cap gap.”
In practice, the "cap gap" poses no problem since immigration regulations have been issued that provide that, as long as an H-1B petition is filed before the expiration of the F-1 duration of status, an individual may remain lawfully in the US under their F-1 visa through the start date of their approved H-1B employment period.
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For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.