Cap Gap Expiration Quickly Approaching: Be Mindful That Some Employees’ Work Authorization May End On October 1, 2013

On April 10, 2013, we reported that USCIS had conducted the lottery process for fiscal year 2014 cap-subject H-1B petitions. Those petitions that were selected and approved will be valid starting October 1, 2013. However, as October 1, 2013 approaches, many cap-subject H-1B petitions remain pending at both the California and Vermont Service Centers. While this delay in adjudication impacts all cap-subject petitions, it especially impacts recent F-1 graduates who are currently work authorized pursuant to the cap-gap regulations.

USCIS regulations allow certain F-1 students with pending or approved H-1B change of status petitions to remain in F-1 status during the period of time when their F-1 student status and work authorization would otherwise expire, up to October 1, 2013. This period of time is commonly referred to as "cap gap," meaning the regulations provide a way of filling the work authorization "gap" between F-1 and H-1B status that might otherwise occur if