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H-1B Cap Filing Season: How to Avoid Getting Stuck in a Gap in Employment Eligibility

March 29, 2017

This time of year, many recent college graduates who are authorized to work in the United States for a limited time as part of post-degree optional practical training are facing a deadline—and employers better take note, or they will end up with workers who have a gap in employment eligibility.

While many employers are filing Fiscal Year 2018 H-1B petitions for employees who have recently graduated and have been authorized temporarily to work thanks to post-degree Optional Practical Training Employment Authorization Documents (OPT EADs), this year there might be a gap between the expiration of the OPT EAD and the validity date of certain H-1B visas.  The reason for the potential gap is that most of the petitions filed by employers are for H-1B visas in a category that is capped, meaning their availability is numerically limited by Congress, and these FY 2018 H-1B cap visas have a beginning validity date of October 1, 2017.

To lessen the impact of this gap in employment eligibility, employers can use what is called a “Cap Gap.”  The Cap Gap is intended to bridge the gap between expiring OPT EAD and the start date for H-1Bs.

Employees who have OPT EADs expiring between April 3, 2017, and June 1, 2017, generally are eligible to continue working after the EAD has expired if they obtain a Form I-20 from their school reflecting that they are work authorized.  Often there are several steps:

1. Upon Filing the H-1B Petition.

After the H-1B petition has been filed, send employees to their school’s Designated School Official (DSO) with evidence of a timely filed H-1B petition consisting of a copy of the petition and the UPS/FedEx delivery receipt.  The DSO should then issue an amended Form I-20 providing work authorization extension until June 1.  Use this Form I-20 to update the employee’s Form I-9. 

If their EAD expires on June 1, of course, this isn’t much help.  However, for those whose OPT EADs expire before June 1, this can eek out several additional weeks of work.

2. If the H-1B has been selected for adjudication.

After the HR team returns from celebrating because their H-1B candidate was chosen in the lottery, send the employee back to the DSO with a copy of the Form I-797 Receipt Notice.  The DSO will issue another amended Form I-20 showing an extension of work authorization until September 30.  Update the Form I-9 again to reflect work authorization until September 30.  When H-1B status starts on October 1, update Form I-9 yet again. 

3. If the H-1B was not selected for adjudication.

If the H-1B petition was not selected, the employee must be removed from the company’s payroll within 10 days of the date stamped on the H-1B rejection page accompanying the returned H-1B petition if the period of OPT expires on or before June 1.  In this case, the employee will need to either change to another visa classification (that may or may not allow work authorization), or depart the United States within 60 days following the H-1B rejection date.

Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.