IT'S CAP GAP TIME!: What employers of F-1 Students need to know

Wednesday, May 4, 2016 - 7:15am

The H-1B "Cap Gap" is the period of time between when the F-1 student status of an employee would end and H-1B status begins (October 1). Certain beneficiaries of cap-subject H-1B petitions that are timely filed on behalf of an eligible F-1 student, which request a change of status to H-1B to start on October 1, qualify for Cap Gap Extension. Qualifying students will be able to legally live and work in the U.S. during the “gap” in time between when F-1 student status would end until the H-1B petition adjudication process has been completed. The Cap Gap extension ends on September 30, or earlier when an H-1B petition is rejected, denied or revoked.

This extension for qualifying students, however, does not alleviate employers' responsibility to reverify the Form I-9 for those F-1 students for whom the documents supplied, evidencing temporary work authorization, will expire during Cap Gap. Reverification of the Form I-9 for employees with expiring work authorization must occur before those documents expire.

Click here to access instruction on how to complete the Form I-9 reverification for employees in Cap Gap.

IMPORTANT TRAVEL UPDATE The new F-1 STEM Extension Rule effective May 10, 2016 includes additional relief for F-1 Students who wish to travel during Cap Gap . The new rule allows Students in STEM OPT to depart the U.S. during a Cap Gap once the relevant H-1B change of status petition has been approved by USCIS. Under the old rule, departing the U.S. during a Cap Gap period meant that the Student would not be able to reenter the U.S. until after the effective date of the approved H-1B petition.

Be sure to follow up with your Maggio + Kattar attorney to ensure your F-1 Students who plan to travel during Cap Gap have all the documents they need to re-enter the U.S.!