Immigration Law Associates
Chicago Lawyer, Attorney: Green Card, H-1B, National Interest Waiver, J-1, Spouse, Fiance, Student Visa, VAWA, Citizenship, Removal, Korean, Polish, Japanese, Spanish

Changing to H-1B from another nonimmigrant status

What is the “Cap-Gap”, and When Does it Apply?
In general, if a person already in the U.S. applies for a change of status to H-1B, and the fiscal year H-1B cap has already been reached, he or she will be treated as out of status if his or her current status ends before the start of the next fiscal year (October 1). This is referred to as the “Cap-Gap”.

Fortunately, foreign students can avoid the Cap-Gap if an employer files in a timely manner for their change of status to H-1B. A timely filing is one that is filed before the foreign national’s F-1 or Optional Practical Training (OPT) expires, or before the end of the 60-day “grace period” after completing their studies or OPT. If they are authorized for employment at the time their employer’s H-1B petition is received, employment authorization will be continued until October 1 as long as their employer’s H-1B petition is approved. However, if they are in F-1 status or have begun their F-1/OPT “grace period” when their H-1B petition is filed, they will not be able to work legally until October.

Persons in F-1 status or OPT whose H-1B petitions are not timely filed are subject to the “Cap-Gap” and must return abroad before their “grace period” ends. This rule also applies to a person in Curricular Practical Training (CPT) or on any temporary nonimmigrant status whose current status expires before October 1. If an employer obtains H-1B approval on their behalf, they may apply for their H-1B visa at a U.S. consulate in their home country or in other designated places.

L-1 and H-1B Time Limits
A person who changes his or her status from L-1 Intracompany Transferee to H-1B must deduct the time spent in L-1 status from the 6-year maximum allowable period for H-1B status. The same is also true in reverse. The sum of time a foreign national may stay in the U.S. on an L-1 or H-1B visa is limited to six years.

No Changes Allowed From “Out of Status”
A foreign national who is not in status is not eligible to change status to H-1B. This rule applies whether the person came into the U.S. without inspection, or came on a valid visa and overstayed or otherwise violated the terms of the visa.

In the Case of a Denial
If USCIS determines that an H-1B petition is not approvable, it will send the employer a Notice of Intent to Deny (NOID). If a NOID is not appealed, or if an appeal fails, the denial by USCIS is final and the law precludes further appeals. In this case, the beneficiary must depart the U.S. as soon as possible to avoid unlawful presence.


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