J-1 student cap-gap: Academic Training expires before Oct. 1 start of H1B and ‎Commissioner's (=US CIS Director) discretion.‎

[Orn1]

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.

[t75]

If you are a graduate student, you already hold a bachelors degree. Your employer can file on that basis. An advanced degree is not required.

[JoeF]

There is no cap-gap for people on J1 at this point, and USCIS has to follow the law.

[JoeF]

An advanced degree is not required.

Unless the job requires an advanced degree. For example, for faculty positions, there also is usually an H1 filed first. These jobs require a PhD, though...