Cap-Gap Extension

The Cap-Gap Extension 

H-1B STATUS AND THE CAP GAP EXTENSION

The H-1B status is temporary employment authorization for a nonimmigrant who performs services in a specialty occupation. An employer may petition United States Citizenship and Immigration Services (USCIS) for H-1B status on behalf of an employee/prospective employee if the candidate holds “theoretical or technical expertise in specialized fields.” USCIS is the government agency responsible for adjudicating H-1B petitions and granting H-1B status.

There is a limit, or “cap,” on the number of individuals who can receive H-1B status every fiscal year. For purposes of the cap, each fiscal year begins on Oct. 1 of the prior calendar year. For more information on the H-1B cap, visit USCIS’s H-1B Fiscal Year (FY) 2018 Cap Season page.

Regulations prohibit employers from filing H-1B petitions until six months before the date of actual need for the employee. This means that once USCIS reaches the cap in one fiscal year, employers must wait until April 1, which is six months before the start of the next fiscal year, before filing H-1B petitions again.

How does Cap-Gap Occur?

Each year, some F-1 students seek to switch nonimmigrant classification from F-1 student status to H-1B temporary employment status after completing a program of study or post-completion optional practical training (OPT). An F-1 student’s current or prospective employer may petition USCIS for H-1B status on their behalf by filing Form I-129, “Petition for a Nonimmigrant Worker.” 

If you are an M-1 student, your prospective employer may petition H-1B status on your behalf if your employment does not relate to your M-1 program of study. For more information on H-1B status eligibility, visit USCIS’s H-1B Eligibility Criteria page.

Many F-1 students complete a program of study or post-completion OPT in mid-spring or early summer. Per federal regulations, after completing their program or post-completion OPT, F-1 students have only 60 days to take the steps necessary to maintain legal status or depart the United States. However, because the change to H-1B status does not occur until Oct. 1, an F-1 student previously had two or more months following the 60-day period with no legal status.

Eligibility for Extension

This means an F-1 student filing for H1-B status on April 1 with a benefit start date of Oct. 1 may qualify for an extension of status and/or employment authorization. The general eligibility requirements for the cap gap extension are listed below, but please understand that your individual case may be different and you should always talk with your designated school official (DSO) about whether you would qualify for a cap gap extension. Additionally, always maintain regular contact with your potential employer to receive updates on the status of your H-1B petition, should they file one for you.

As an F-1 student, you may be eligible for an extension of your F-1 status through Sept. 30 if you meet the following requirements:

  • Your potential employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

You may be eligible for an extension of your F-1 status and authorized period of post-completion OPT (including the science, technology, engineering and mathematics (STEM) OPT extension) in the following circumstances:

  • Your employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • You are in an authorized period of post-completion OPT (including the STEM OPT extension) on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

If you are eligible for the cap gap extension, your proof that you are still in F-1 status and that you may continue OPT (if applicable) is a note on your Form I-20, “Certificate of Eligibility of Nonimmigrant Student Status.” Obtain an updated Form I-20 from your DSO when the Cap Gap extension begins with a note indicating that your F-1 status and, if applicable, your OPT authorization will continue, typically until Sept. 30.

If your H-1B petition is denied, withdrawn, revoked or not selected, an F-1 student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to depart the United States.

Please note: F-1 students who have entered the 60-day grace period are not authorized to work even if student has recently completed Post-Completion/STEM Optional Practical Training.  If an H‑1B cap-subject petition is filed for a student who has entered the 60-day grace period, the student will receive the automatic extension of his or her F-1 status, but will not be authorized to work since the student was not authorized to work at the time H-1B petition was filed.

Proof of Continuing Status

The cap-gap extension of OPT is automatic for eligible students. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, issued to the student by the OIS. This document serves as proof of continued employment authorization.

If a student chooses to obtain an updated Form I-20, the student should  contact the OIS, with evidence of a timely-filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The OIS will issue an updated Form I-20, showing an extension until June 1.

If the H-1B petition is selected by USCIS, the student should again contact the OIS with a copy of the petitioning employer’s Form I-797, Notice of Action, indicating that the petition was filed and accepted. The Form I-797 must have a valid receipt number. The OIS will issue another updated Form I-20, showing an extension until October 1. In such situations, the student can continue to work while the update to his or her Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.

Note: IF a student does not request a Cap-Gap I-20 before June 1st, or before October 1st, a Cap-Gap I-20 cannot be issued. 

Traveling on Cap-Gap Extension 

Under certain circumstances, an F-1 student on the cap gap extension may travel abroad and seek readmission to the United States. However, if an F-1 student travels abroad before USCIS approves their H-1B change of status (COS) petition, USCIS will deem the petition abandoned. The student’s F-1 status will expire per the program end date listed on their Form I-20. Meaning, if a student leaves the United States before USCIS approves their H-1B COS petition, that student will not be able to re-enter the United States as an F-1 student pursuant to the cap gap extension provisions.

Specifically, you may travel abroad and seek readmission into the United States if you are an F-1 student on the cap gap extension and meet the following criteria:

  • Your H-1B petition and request for change of status has been approved by USCIS.
  • You seek readmission before your H-1B employment begins (normally such employment begins at the start of the fiscal year, i.e., Oct. 1). Y
  • You are otherwise admissible (e.g., you have all proper documentation including a valid, signed Form I-20 and an F-1 visa).

You will not need to provide an Employment Authorization Document (EAD). This requirement does not apply because during the cap gap period your EAD card will have already expired, and USCIS will not renew the EAD card during the interim period. 

As with all other international arrivals at a U.S. port of entry, the final decision on whether to grant admission into the United States lies with U.S. Customs and Border Protection (CBP) officers. Visit our Getting to the United States page and CBP’s website for more information regarding the appropriate travel documents and supporting evidence required for entry into in the United States.