Individuals on a student visa can often have the cap gap issue when they apply for an H-1B visa and yet their F-1 status expires before the start date of the H-1B visa. In other words, they can start working for the H-1B visa employer on October 1, 2013, and their student visa expired on May 1, 2013, for example. All New H-1B visas have the start date of October 1st for that year because that is when the fiscal year starts for H-1B visa availability.
To correct the problem of a student’s visa expiring before October 1, USCIS created what they call “Cap Gap” rules to protect students in that situation. Basically, the student can remain in the U.S. even though their visa will expire before the H-1B start date of October 1st. Without the beneficial cap gap rules, the student would otherwise have to depart the U.S. and consular process his H-1B visa through a U.S. Embassy.
Regarding whether students can travel during the cap gap period, USCIS has recently issued guidance that states that travel during this period of time is strongly discouraged. Generally, USCIS will consider the change of status petition to be abandoned if the student travels outside the U.S. before the H-1B is approved. The underlying H-1B itself may still be approved, but the change of status request will be denied. The end result is that the foreign national will then need to apply for the H-1B visa at a U.S. Consular post in their foreign country.
If the foreign national applies for the H-1B to be issued by the U.S. Consular post, he or she will only be granted entry ten (10) days prior to October 1st, which is on or about September 20th of that year. It is important to note that obtaining the H-1B visa at a U.S. Consular Post can be more complicated than filing a change of status request, as the U.S. Consular Post may want additional documentation, such as original degrees, new offer of employment letter on original letterhead from the potential employer, and other documentation before the H-1B visa will be issued.