Conflict between H1B capgap and H4

Hi there,

My wife is working on F1-OPT which is expiring on May 23 2023. So we applied for H4 COS + EAD and H4 COS was approved on Mar 28 with start date as May 24 2023 and EAD is still in process. Fortunately at the same time her h1B got picked in lottery. Now we are worried about how she can continue employment from May 24 2023.

Is she eligible for H1B capgap extension from May 24 2023 even though she has H4 visa starting from may 24 2023?
What are our options to ensure she has continued employment from May 24?

Please advise.

This is a tricky situation given her status will change to H4. Technically she can get cap gap extension if her F1 status is expiring between April and September provided her H1B petition is filed before her OPT expires. Talk to the immigration lawyer of her H1B sponsoring employer and ask them when they can file the H1B petition. Also make them aware about her status change.

F-1 Cap Gap Extension | Study in the States.

File H1B petition after May 24 ( you have up to June 30th to file) with a change of status from H4 to H1B starting 1st October. Provided her H4 EAD is approved before 23rd May, she can continue to work on H4 EAD.
You may request an expidite for H4 EAD if it is not approved by mid April.


If we get H4-EAD by May 23 , then all good she can continue working. If she doesn’t, then she can’t get cap from May 24 because she has H4 from May 24 and has to wait till Oct for H1B to kick in.
Is this what you are suggesting?

Yes that is correct. Make sure she consult her employer’s immigration lawyer.