Unfortunately, I do not believe the cap gap applies to those in J-1 status anymore.

The interim final rule on Optional Practical Training published in the Federal Register on April 8, 2008 permanently codified the "cap gap" in the regulations, by automatically extending any employment authorization and duration of status of an individual in F-1 status, for whom an H-1B petition has been timely filed, until October 1 of the fiscal year in which the H-1B visa is being requested. The rule eliminates the need for yearly ad hoc determinations and publication of Federal Register notices announcing the "bridge." The rule applies only to nonimmigrants in F-1 status and not to those in J-1 status.

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student's status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the "cap-gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

You may need to look at H-1B employers who are cap exempt or make plans to depart the U.S. in April and return in late September/early October.

Every case is different and dependent on specific facts. You should consider consulting with an immigration attorney who can review your specific docs and facts.

Regards,

Andrew M. Wilson, Esq.

Serotte Reich Wilson, LLP

www.srwlawyers.com

awilson@srwlawyers.com