New H-1B Cap Gap Rule May Not Help Those Who Need It Most

The new H-1B cap gap bridge is revealing a crack that may cause it to collapse.

The new regulation requires H-1B applications be marked “change of status” to benefit from the automatic Optional Practical Training (OPT) cap gap extension.

This requirement poses a critical problem for cap gap sufferers because they would not have been eligible to change status. Instead, those whose status would have expired before the Oct. 1 employment start date would have had to leave the country to obtain their visa, thus they would have not checked the “change of status” box.

In other words, the regulation has made itself inapplicable to the very group it is intended to protect.

AILA has called this irony to the attention of USCIS and is awaiting guidance.

We will post any update as soon as it is announced.