J-1 student cap-gap: Academic Training expires before H1B

Hello, I am a graduate student at a top-10 US university. I am on a J-1 visa, since I wanted to allow my wife to work on a J-2. I got a job offer, and the company is willing to sponsor me for H1B. The problem is, I won't be eligible for the master's degree on April 1, 2013, and given the expected demand, I will most probably miss the quota by the time I already have the diploma or the letter of completion in hand.

So, it pushes me to the next H1B cycle. In the meantime, I am eligible to work - thanks to the J-1 Academic Training (AT) provision (similar to OPT on F-1 visa), but then I face another problem: even if my H1B is approved in 2014, my Academic Training period expires before October 1, 2014. It means I have a gap of a few months between the end of my AT and the beginning of my H1B.

I did some legal research, and as far as I understand, there is no "cap gap" provision for J-1 students, as opposed to F-1 students.

However, until 2009, the Commissioner (who really is “Director of the Bureau of Citizenship and Immigration Services [simply put, the Director of USCIS]. the Commissioner of the Bureau of Customs and Border Protection, and the Assistant Secretary for the Bureau of Immigration and Customs Enforcement”, according to 8 C.F.R. § 1.1(d)) published an yearly notice in the Federal Register to "bridge the gap" and extend the duration of status for F-1 and J-1 status holders in the years the H-1B cap was reached.

In those years, by publishing the notice the commissioner exercised his authority under 8 C.F.R. 214.2(f)(5)(vi) [for F students] and under 8 C.F.R. 214.2(j)(1)(vi) [for J students].

On April 8, 2008 an Interim Final Rule was published in the Federal Register, and permanently codified the automatic "cap gap" in the regulations – but only for F-1 students.

No such regulation was introduced for J-1 students – but the discretionary provision still remains in the law books: see 8 C.F.R. 214.2(j)(1)(vi). It means that the Commissioner (Director of USCIS) can still "manually" bridge the gap for J-1 students – as he indeed was doing for many years, concurrently with extending the status for F-1 students.

And here is the question: I am aware of the answer published by the USCIS in 2010 ([http://1.usa.gov/146tBaf](http://1.usa.gov/146tBaf)). However, given the intertwined history of F-1 and J-1 "cap gap" extensions for students – for many years – it seems that the abovementioned permanent codification for F-1 simply "forgot" to include J-1 students – who for almost all intents and purposed are very similar to F-1 holders.

Is my analysis correct?

I believe there are thousands of J-1 students in the similar situation, experiencing the same "cap gap" as their F-1 classmates. Is it possible to "switch" from J-1 to F-1 while still at school or during the Academic Training?

Or, from a practical standpoint, such J-1 students simply continue working through the gap – and when time is due to renew the H1B in 3 years, USCIS understands that there is no practical difference between F-1s and J-1s, and sees this period as automatically covered – exactly as it would for an F-1?

Finally, is it reasonable to expect that an ambitious immigration attorney will pick up the gauntlet and ask the Commissioner to extend the status for J-1 students in a particular year when the cap is reached?

I apologize for the long post – I just wanted to gather all the information together for future googlers. I would appreciate any input! Thank you very much in advance.

This is a very well researched question. If I am not mistaken, the J1-AT can extend to 18 months with further provision of 6 month extension so you should be safe until your H-1B comes through.

Best wishes

Sandeep Shankar, Ph.D.


Colorado Heights University



Hello Orn1,

I am in exactly similar situation to you. I am falling almost 1 month short with the AT. Were you able to find out the exact answer to your question and more importantly were you able to apply for the extension somehow. Also, I will like to know if the employers will not be willing to sponsor you if they find out the problem in your work status? Any piece of advice will be very helpful.