Florida Immigration Attorneys

CAP & GAP issues -- COS, Portability, and Selection Procedures

Change of Status and H-1B Cap

An issue arises when the application for H-1B has a request for a Change of Status ‘COS’ and the H-1B Cap has been reached. This is commonly referred to as the “Cap-Gap”. The situation occurs when a person applying for a COS where the H-1B cap has been reached will be treated by DHS as out of status if he or she falls out of status before the beginning of the next fiscal year. The government fiscal year always begins on October 1.

This situation occurs frequently such as when a person who is in valid non-immigrant visor status (B-1/2) status on April 1 at the time of filing for H-1B status but whose B-1/2 status will expire before October 1 when a COS to H-1B is permitted. In this situation, the H-1B petition may be approved but the B1/2 visitor will be considered Out of Status due to the gap between the time the B1/2 expires and October 1. Thus the H-1B petition may be approved but the COS will be denied. The B-1/2 visitor has some possibilities for remedy of this situation including filing for an extension of B1/2 status or departing the US and returning October 1 or after with an H-1B visa obtained from a US consulate outside the US.

Other non-immigrants such as F-1s and J-1s and their dependents with Duration of Status (D?S) may file for a COS within the designated grace period for their respective status. This is normally 60 days for F-1s and 30 days for J-1s. If the October 1 date is reached during those periods they will be consider to be in status. In addition if in the Optional Practical Training ‘OPT’ period for an F-1 who has timely filed a COS to H-1B the OPT will be automatically extended until October 1 so that there is no gap between the time F-1 status would have expired and the October 1 H-1B start date. This applies to F-2 dependents as to their status but does not accord employment authorization.

Portability of Cap-Exempt H-1B Employer to Cap-Subject H-1B Employer

An H-1B is permitted to port from a cap-exempt employer to a cap-subject employer during the period when there are no H-1B’s available as long as the cap-subject H-1B petition is approved and the Labor Condition Application ‘LCA’ covers the entire period of employment.

In most situations when a person has been out of status in the US they must return to their native country for visa issuance to return to the US. In the situation where a COS to H-1B is denied because the cap is reached, and the denial of COS is due to lack of H-1B numbers, the denial may considered an extraordinary circumstance under INA 222(g) and the person may be permitted to go to a third country, rather than return to the native country for visa issuance as long as there is no unauthorized employment.

CIS Procedure for Selecting H-1B Petitions

An employer may not file more than one H-1B petition for each prospective employee during a fiscal year. Therefore, a prospective employee who qualifies for the “master’s cap” of 20,000 cannot file a petition both under regular H-1B CAP and the master’s H-1B CAP. This preclusion includes an employer from filing multiple petitions for different jobs for the same employee. The preclusion does not apply to related employers such as parent and subsidiary companies or affiliates. However, the employer must demonstrate a legitimate business need to do so and failing to meet this requirement will result in all petitions on behalf of the beneficiary to be denied or revoked. Presently all H-1B petitions filed during the first five business days beginning April 1 will be accepted for random selection under the CAP.