International Student and Scholar Services
OPT, H-1B and the Cap Gap
Elimination of the H-1B “Cap-Gap” with new ruling, effective April 8, 2008
The H-1B “cap-gap” occurs when a F-1 student’s status and OPT work authorization expires during the current fiscal year before the student can start approved H-1B employment during the next fiscal year that begins on October 1. For example, a student whose OPT ending date is July 16, 2008, and whose employer successfully files an H-1B petition for a job that is subject to the H-1B “cap” and starts October 1 formerly needed to stop employment as of July 16, and depart the United States on September 15 (the last day of the 60-day grace period following OPT). Then, while outside the United States, the student was required to obtain an H-1B visa, and re-enter the United States no sooner than 10 days prior to the H-1B start date.
Cap Gap Provisions
The extension for “cap gap” status and work authorization officially commences on the date of filing the H-1B (the date received by USCIS), not the receipt date.
If a student’s program end date was before the filing of an H-1B petition on April 1, 2008, but s/he is still within the 60 day grace period as of April 8, 2008, the student's F-1 status would be extended under this provision. However, it is not clear whether the expired work authorization would be revived. USCIS and SEVP are consulting with counsel.
For a student who is the beneficiary of an H-1B petition for a cap exempt (higher education) employer, USCIS will likely NOT recognize that s/he is eligible for the extension of status & work authorization under the cap gap provision of this rule. The rationale is that a cap exempt employer can choose a start date that matches the end of authorized F-1 status or work authorization. USCIS and SEVP are consulting with counsel.
The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. However, the student would have a grace period after the termination during which s/he is authorized to remain in the United States for up to 60 days to prepare for departure from US, change degree level, transfer, change status, etc. as long as the student has not otherwise violated status.
USCIS and SEVP are currently developing a policy regarding documentation that would prove that a student’s status and authorization have been extended. Most likely, it will involve a SEVIS data fix with notation on the I-20, e.g. “F-1 status and work authorization extended to…(insert date).”
The extension for “cap gap” status and work authorization officially commences on the date of filing the H-1B (the date received by USCIS), not the receipt date.
If a student’s program end date was before the filing of an H-1B petition on April 1, 2008, but s/he is still within the 60 day grace period as of April 8, 2008, the student's F-1 status would be extended under this provision. However, it is not clear whether the expired work authorization would be revived. USCIS and SEVP are consulting with counsel.
For a student who is the beneficiary of an H-1B petition for a cap exempt (higher education) employer, USCIS will likely NOT recognize that s/he is eligible for the extension of status & work authorization under the cap gap provision of this rule. The rationale is that a cap exempt employer can choose a start date that matches the end of authorized F-1 status or work authorization. USCIS and SEVP are consulting with counsel.
The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. However, the student would have a grace period after the termination during which s/he is authorized to remain in the United States for up to 60 days to prepare for departure from US, change degree level, transfer, change status, etc. as long as the student has not otherwise violated status.
USCIS and SEVP are currently developing a policy regarding documentation that would prove that a student’s status and authorization have been extended. Most likely, it will involve a SEVIS data fix with notation on the I-20, e.g. “F-1 status and work authorization extended to…(insert date).”
H-1B cap-gap extension of D/S and work authorization until October 1. Duration of status and work authorization will be extended for a student on OPT, who is the beneficiary of a timely filed H-1B petition requesting an employment start date of October 1 of the following fiscal year. This would apply to all students on OPT, not just STEM students. The extension of duration of status and work authorization would automatically terminate upon the rejection, denial, or revocation of the H-1B petition filed on the student's behalf.