World Journal Weekly Q & A - February 2, 2014

Q & A 1.

Q&A 1.

Does the H-1B Cap Gap Rule Allowing F-1 Students Who Statuses Expire During the Gap from April – September Apply also to J-1 Holders?

A reader asks:

For many years, the Commissioner exercised authority under §8 C.F.R. 214.2 (f)(5)(VI) for (F-1s) and §8C.F.R.214.2 (J)(1)(vi) (for J-1s), bridging the gap. On 4/8/08 an Interim Final Rule was published in the Federal Register, permanently codifying automatic “Cap Gap” forgetting J-1 but the discretionary provision remained in 8C.F.R. 214.2 (j)(1)(vi). Is it possible to “switch” from J-1 to F-1 while in Academic Training or while still at university? Practically, do J-1 simply continue working through the gap when renewing the H-1B, USCIS understands that it is unfair to discriminate former J student vs. F. It is reasonable to expect an ambitious immigration attorney to motion the commissioner to extend the status for J-1s as was done for years?

Dear reader:

Unfortunately the cap gap rule pertains not to J-1 aliens, but to F-1 students. It is possible to switch from J-1 to F-1 while in academic training or while still at university as we have done it for a number of clients in the past. Without employment authorization, J-1 holders would be violating immigration rules by continuing to work after their work authorization expires. It is hard for me to comment on your aside that USCIS understands that it is unfair to discriminate former J students versus F. I am not privy to the understanding of the agency. A motion by an immigration attorney to the Commissioner would have no effect to allow J-1's work privileges who are caught in a gap before an H-1B visa comes into effect in October. Perhaps you should be lobbying your congressmen and senators to take action.

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