USCIS released a Q&A (questions and answers) document on April 2, 2010, that addresses the automatic extension of F-1 student status in the United States for students with pending or approved FY 2011 H-1B petitions that include a request for change of status to H-1B (the so-called, “Cap- Gap” provision).
The Q&A notes that an employer may not file an H-1B petition earlier than six months in advance of the date of actual need for the beneficiary’s services. As a result, the earliest date that an employer can file an H-1B petition for the following fiscal year is April 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is the first day of the new fiscal year, October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, must leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission in H-1B status for the dates reflected on the approved H-1B petition.
H-1B petitions must be timely filed on behalf of an eligible F-1 student, the Q&A notes. Timely filed means that the H-1B petition and request for change of status was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).
Once a timely filing has been made, the Q&A notes, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.
If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or his or her program or OPT end date, whichever is later, to depart the United States. Note that, if the student held valid OPT status on the H-1 filing date, then the student is authorized to continue working until the H-1 petition is selected and approved. If there was no OPT status on the H-1 filing date, then the cap gap relief extends lawful status but does not provide work authorization.
USCIS strongly encourages students “to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.”
The Q&A, which includes details about how to obtain proof of continuing status under the cap-gap extension, limitations on travel and unemployment, and other information, is available here.