High Tech with a Human Touch
OPT, H-1B and the Cap Gap
What is the Cap-Gap Extension?
H-1B applications subject to the cap are able to be filed up to 180 days before the beginning of the government fiscal year that starts on October 1. Thus, the first day of filing for a cap subject H-1B is April 1 of each year and the start date of employment is October 1.
USCIS has addressed the "cap-gap" of employment authorization between OPT ending on or after April 1 but not lasting till the October 1 start date by extending the authorized period of employment for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the student is given a work extension that enables him/her to remain in the United States until the requested start date indicated on the H-1B petition, technically October 1st.
The Designated School Official (DSO) at ISSS will process the Cap-Gap Extension I-20 on behalf of the student. In order for the DSO to indicate that a student has a Filed or Waitlisted Cap-Gap Extension, the student must be able to provide proof that the petition has been filed or waitlisted.
Who is eligible?
The cap-gap extension of status applies to all F-1 students in all fields of study with pending H-1B petitions(whether the 12 month card or STEM extension) during the current fiscal year. For employment authorization to be extended during the cap-gap, the student must have an approved period of post-completion or 17 month extension with a future OPT end date., i.e., the OPT end date must always be AFTER the date the H-1B petition was filed.
A student who does not have post-completion OPT or 17 month extension, or whose post-completion OPT or 17 month extension has expired before the H-1B petition was filed, will have the duration of status extended as a grace period for 60 days, but will not have cap-gap work authorization.
How is the Cap-Gap I-20 endorsed to indicate employment authorization?
ISSS will process an I-20 that takes into account the different stages of the H-1B filing, selection, and adjudication process. The cap-gap Form I-20 will contain an endorsement that F-1 status and employment authorization for said student have been automatically extended to [the applicable date will be inserted].
USCIS will note an expiration date on the cap-gap Form I-20 as follows:
- Qualifying H-1B petition properly filed but not yet receipted by USCIS: Preliminary extension of OPT to June 1.
- H-1B petition (1) receipted by USCIS (i.e., it has been selected by USCIS), or (2) approved by USCIS: OPT and F-1 status extended to September 30.
During this period of time, the student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR214.2(f)(5)(iv) and 8 CFR274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944). Additional information about the automatic extension can be found on the Student and Exchange Visitor Program website.
How do I apply?
Although students are eligible to apply for a cap-gap extension once their employer has submitted the H-1B petition, students should wait until they have received a receipt from USCIS. This will insure that their extension is valid until Sept. 30th. Please see the section “How is the Cap-Gap I-20 Endorsed to Indicate Employment Authorization” for information on how the status of the H-1B petition affects the extension date.
Students must submit by email the following documents as PDF attachments to firstname.lastname@example.org. Write “Cap-Gap Extension” in the subject line.
- If H-1B has been submitted to USCIS but not receipted - include statement from employer that the student is the beneficiary listed on a properly filed H-1B petition and proof of delivery to a USCIS Service Center that shows the date of receipt
- If H1B has been receipted by USCIS or approved: Include a copy of the Form I-797A (approval for a change of status), I-797B (approval for a change of status through consular processing), or I-797C
- Copy of current I-20
- Copy of front of current EAD card (Employment Authorization Document)
How long will the Cap-Gap Extension request take to process with ISSS?
ISSS will process the Cap-Gap Extension I-20 within 7 business days of the student’s submission by email.
Once the I-20 is generated, ISSS will send the I-20 via certified mail to the LOCAL U.S. mailing address reported to ISSS/USCIS.
What do I do if my OPT expires and my Cap-Gap Extension request is still pending with the USCIS?
Under the new rule, the Cap-Gap Extension is a period in which an eligible F-1 student’s status is automatically extended to bridge the gap between the end of F-1 status and the start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date, April 1, the student becomes eligible for the extension, the student’s post-completion OPT is automatically extended. Therefore, the student is allowed to continue working with the employer while the Cap-Gap Extension request is pending.
What happens if after I become eligible for an automatic Cap-Gap Extension and employment authorization, but my H-1B petition is subsequently rejected, denied or revoked?
If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension, the student will have the standard 60-day grace period (from the notification date of the denial, rejection, or revocation of the petition) before he or she is required to depart the U.S., change degree level, transfer to another SEVIS approved school, or change status as long as the student has not otherwise violated status. The student cannot (1) leave and re-enter the U.S. during this time and (2) cannot work.
For denied cases: It should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation. Such a student in any event is not eligible for the automatic cap-gap extension. Similarly, the 60-day grace period would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.
Do the limits on unemployment time apply to students with a Cap-Gap Extension?
Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension and the 120-day limitation on unemployment under the STEM extension guidelines.
May a student eligible for a Cap-Gap Extension of status and employment authorization apply for a 17 month OPT Extension while he or she is in the Cap-Gap Extension period?
Yes, the STEM application must be receipted by USCIS before the cap-gap extension period is terminated (e.g., notice of rejection, denial, or revocation of the H-1B petition), and the student enters the 60-day departure preparation period.
Does my dependent’s status also get extended under this Cap-Gap provision?
An automatic extension of an F-1 student's duration of status also applies to the duration of status of any F-2 dependents.
May students travel outside the United States during a Cap-Gap Extension period and return in F-1 status?
By definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired. As a result, if the student elects to travel outside the United States during a cap-gap extension, he/she should be prepared to apply for the H-1B visa at a consular post abroad (consular processing) prior to returning. Because the H-1B petition is for an October 1 start date, the student should be prepared to adjust his/her travel plans, accordingly.
Additionally, legal counsel is strongly suggested with the company one is being hired by before traveling during a cap gap extension.