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J-1 student cap-gap: Academic Training expires before Oct. 1 start of H1B

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  • J-1 student cap-gap: Academic Training expires before Oct. 1 start of 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). 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.