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What Is The "H-1B Cap"?
The H1B cap is a Congressionally-mandated limit on the number of individuals who may be granted initial H-1B status or visas during each government fiscal year. A foreign national who wishes to apply for H-1B status may do so up to six months before his or her requested visa "start date". The government's fiscal year starts on October 1. So if a foreign student wants to change to H-1B status, they must file an H-1B petition on April 1 (six months before their requested visa "start date"), and request that their H-1B status start on October 1.
What Is The "H-1B Cap Gap"?
For many years, the number of "bachelor's" level and "master's exempt" level H-1B petitions filed have exceeded the number of available visas within the first few days that applications may be filed (or April 1 for an October 1 start date). The situation has gotten so bad that the government now collects all of the H-1B petitions filed between April 1-April 5 and holds a "lottery" to see which H-1B petitions will be accepted for processing.
This is not an issue for foreign students who are just graduating. This is because such students may work for 12 months after graduation under the "optional practical training" (OPT) program. It is when a student's OPT period expires that he or she runs afoul of the H-1B "cap gap".
The government uses the OPT expiration period as the “date certain” for when a student’s educational program ends. In other words, the OPT expiration date is when a student’s “duration of status” (or “D/S”) entry into the United States ends. Since a graduate’s OPT period typically starts in June or shortly thereafter, the student’s F-1 status typically expires sometime between June and September of the next year.
Under the old law, this meant that a foreign student had no immigration status between the time their OPT expires and the government’s new fiscal year starts on October 1, which is when a student’s new H-1B status begins. This also means that the student does not have work authorization during this period. Because of this, under the old program, students were required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H1B status on October 1. This caused many students to lose their H-1B sponsorships since the employer was unwilling or unable to hold a position open for 3-4 months while the student waited for the government’s new fiscal year to start.
What Is "H-1B Cap Gap Relief"?
Under the H-1B cap gap relief provisions, if a student’s sponsoring employer files an H-1B petition during the student’s OPT period (or during the 60-day grace period after this date), an automatic cap gap extension begins and will continue until the H-1B process has been completed.
"STEM" OPT Extension
Students who receive Science, Technology, Engineering, or Mathematics (STEM) degrees may apply for a 17-month extension of their OPT so that their total OPT period is 29 months. This gives U.S. employers two chances to apply for H-1B status for these graduates, since this OPT extension is long enough to allow for H-1B petitions to be filed in two successive fiscal years.
In order to qualify under this program:
STEM Program Fields of Study
For a complete list of STEM degrees, please go to the ICE STEM List.
What Is The E-Verify Program
The E-Verify program is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). It allows employers to determine employment eligibility of new hires and the validity of their Social Security Numbers.
This is done by electronically comparing information contained on the Employment Eligibility Verification Form I-9 with records contained in SSA and DHS databases.
For more information on the E-Verify program, please click here.
The H-1B Cap
One of the biggest hurdles facing a recent college graduate who wishes to work in the United States is the so-called "H-1B cap". This section will hopefully explain what this is and how to avoid it by relying on either the H-1B cap relief laws or (under a separate section) the E-2 visa category.
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