Cap Gap FAQ
Cap Gap FAQ
Cap-Gap FAQ
What is the H-1B cap-gap?
The cap-gap rule provides an automatic extension of duration of status (D/S), and any OPT work authorization for an F-1 student who: 1. is the beneficiary of a timely-filed H-1B petition requesting change of status and 2. has an H-1B employment start date of October 1. This applies to all qualified students on post-completion OPT, including STEM students.
What is the H-1B cap-gap extension?
Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the "cap-gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.
What is the Cap-Gap Extension Timeline?
|
Filed |
June 1 |
|
Receipted or Approved |
September 30 |
|
Withdrawn or Denied |
OPT ends 10 days after date of withdrawal/denial with 60-day grace period thereafter |
Who is Eligible for an extension?
H-1B petitions that are timely filed for an F-1 student on October 1 qualify for a cap-gap extension. Timely filed means that the H-1B petition was filed in the period that begins on April 1 while the student's F-1 status was still in effect. Once the petitioner timely files a request to change status to H-1B on October 1, the automatic cap-gap extension will begin. If the student’s H-1B petition is selected and approved, the student’s extension of status will continue through September 30. The extension of status will automatically terminate if the student’s H-1B petition is denied, withdrawn, revoked, rejected, or is not selected, or if the change of status request is denied or withdrawn even if the H-1B petition is approved for consular processing. The student will have the standard 60-day grace period from the date the extension of status terminated or their program end date, whichever is later, to depart the U.S.
Please note: If OPT expires before April 1 and the student is in their grace period when the H-1B is filed, the student qualifies ONLY for an extension of status and NOT work authorization!
What happens to students who do not qualify for an extension?
F-1 students who do not qualify for a cap-gap extension and whose periods of authorized stay expire before October 1 are required to leave the United States. They then need to apply for an H-1B visa at a consular post abroad and seek to be readmitted into the United States in H-1B status for the dates reflected on the approved H-1B petition. Additionally, the cap-gap provision applies only to beneficiaries of cap-subject H-1B petitions, not to beneficiaries of cap-exempt H-1B petitions.
How to Request a Cap-Gap I-20 from Rowan International Center?
The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new Employment Authorization Document to cover the additional time. The only proof of continued employment authorization is an updated Form I-20 showing an extension of OPT, issued by the international advisor. If you choose to obtain an updated Form I-20, you should email the international advisor with an evidence of a timely-filed H-1B petition, such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s advisor will issue an updated Form I-20, showing an extension until June 1.
If the H-1B petition is selected by USCIS, you should send to the international advisor a copy of Form I-797 and Notice of Action, indicating that the petition was filed and accepted. The advisor 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.
What happens if the H-1B Petition get denied?
If an H-1B petition filed for an F-1 student with a cap-gap extension is denied, rejected, revoked, or withdrawn, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, revocation, or withdrawal of the petition) to depart the United States.
Is travel permitted during Cap-Gap Extension Period?
An F-1 student may generally travel abroad and seek readmission to the United States in F-1 status during a cap-gap period if:
- The student’s H-1B petition and request for change of status has been approved;
- The student seeks readmission before his or her H-1B employment begins(normally at the beginning of the fiscal year on October 1); and
- The student is otherwise admissible.
Please note that even if a F-1 student meets all of the requirements listed above, a U.S. Customs and Border Protection (CBP) officer always makes the final determination on admission.
Should the student apply for STEM OPT Extension?
F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List (PDF) may apply for a 24-month STEM extension. Actually, STEM eligible students are strongly encouraged to apply for the STEM OPT extension before the end date of their Post-OPT. Having an approved STEM extension will continue your employment eligibility in the event your petition is not selected for processing or your petition is denied. However, students may not apply for a STEM OPT extension once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day departure grace period.
How can the student check the status of an H1-B petition?
There are several ways to check the status of your H-1B petition. Before following any of the methods below you will need to obtain your petition receipt number from the attorney who filed your H-1B petition.
- Contact USCIS at 1-800-375-5283
- Visit the USCIS website and click “Check Case Status”
- Log into your SEVP Portal Account. Check the end date of your OPT. If it has been changed to September 30, you most likely have been selected.
STEM eligible students are strongly encouraged to apply for the STEM OPT extension, in Terra Dotta, before the end date of their Post-OPT. Having an approved STEM extension will continue your employment eligibility in the event your petition is not selected for processing or denied.
What happens if the student get laid off or terminated by the H-1B employer?
If the student has been approved to change their status to an H-1B but is laid off/terminated by the employer before the date they obtain H-1B status, the student can retrieve any unused OPT if he or she has an unexpired EAD for OPT. The student will remain in F-1 status and can continue his or her OPT using the unexpired EAD. The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status goes into effect. This will prevent the student from changing to H-1B status. Once the petition has been revoked or withdrawn, the student must provide his or her international advisor with a copy of the acknowledgement of withdrawal. The International Center will then contact the SEVIS helpdesk to request a data fix in SEVIS to prevent the student from being terminated in SEVIS.
If USCIS does not receive the withdrawal request before the date that the student is supposed to change status to an H-1B nonimmigrant, then the student will need to stop working, file Form I-539, Application to Extend/Change Nonimmigrant Status to request F-1 status, and wait until the change of status request is approved before resuming employment.
What happens if the Student finds a new H-1B job?
The F-1 student can continue working with his or her approved EAD while the data fix in SEVIS is pending if:
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- The (former) H-1B employer withdrew the H-1B petition on time;
- The student finds employment appropriate to his or her OPT;
- The period of OPT is unexpired; and
- The International Advisor has requested a data fix in SEVIS.
Recent News:
Detailed Resources:
H-1B Fiscal Year (FY) 2019 Cap Season
