What’s Changing to H-1B Cap Gap for F-1 Students?

Takeaways

• The new DHS rule extends the H-1B Cap Gap period from 10.1 to 04.1.
• F-1 students with pending or approved H-1B petitions benefit from this extension.
• Employers must adjust their processes to comply with the new rule.

The Department of Homeland Security (DHS) has published a final rule (89 FR 10354) that significantly changes the H-1B Cap Gap period. This rule automatically extends the duration of status and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C) for F-1 students who are beneficiaries of H-1B Change of Status petitions.

The key change is that the automatic extension end date has been moved from Oct. 1 to April 1 of the fiscal year for which H-1B status is being requested or until the validity start date of the approved petition, whichever is earlier. This adjustment aims to provide a smoother transition for F-1 students moving to H-1B status.

This change is particularly beneficial for F-1 students, who often face a gap in their employment authorization between the end of their academic program and the start of their H-1B employment. Extending the Cap Gap period to April 1 allows students to maintain their status and continue working without interruption.

This new rule aligns with the broader efforts to modernize and improve the efficiency of the H-1B program, as outlined in the DHS’s final rule published on Dec. 18, 2024.

Employers should take note of these changes and adjust their processes accordingly. It is crucial to ensure that all relevant documentation reflects the new Cap Gap period and that any necessary updates are made to employment verification systems.

For more detailed information, refer to the DHS’s final rule and the USCIS news release. These resources provide comprehensive guidance on the new regulations and their implications for both employers and F-1 students.

Please contact a Jackson Lewis attorney with any questions.