H-1B Cap Gap

The U.S. Citizenship and Immigration Services (USCIS) is authorized to extend the status of F-1 students caught in a “cap-gap” between the end of their OPT and the start date of their approved H-1B petition. This cap-gap extension automatically becomes effective when the H-1B cap has been reached for the previous fiscal year, and the F-1 student has an H-1B petition filed on his/her behalf during the following acceptance period.

The cap-gap provision automatically extends the F-1 status and OPT employment authorization of an F-1 student who has filed an H-1B petition that has been granted by, or remains pending with USCIS. This means that if the H-1B petition is selected as a “cap case,” the F-1 student’s status and employment authorization is automatically extended. S/he may remain in the United States and continue working until September 30th of that year with his/her extended OPT, and the H-1B would begin on October 1. Students do not automatically receive notification when they have a cap-gap extension, but they can obtain an updated “cap-gap Form I-20” from their school.

Once USCIS rejects, denies or revokes a pending H-1B petition, the automatic extension of status and employment authorization ends. The F-1 student has the standard 60-day grace period (from notification of the denial, rejection or revocation of the petition) before s/he is required to depart the United States.

 

Cap-Gap Extension Eligibility

Generally, cap-gap extensions apply to all F-1 students with pending H-1B petitions. However, there are certain restrictions:

  • Cap-gap relief only applies to F-1 students who apply for change of status petitions and not to those who elect to “initiate” the H-1B visa at a U.S. embassy or consulate abroad, also known as “consular processing;”
  • An F-1 student must have a valid OPT at the time of filing on April 1 (this typically has implications for F-1 students with December graduation dates);
  • If an F-1 student files a cap-gap H-1B petition during his/her 60-day grace period, but after the OPT has already expired, the F-1 student is only eligible for the automatic extension of F-1 “status” — the OPT employment authorization will not be extended. This means that the F-1 student can stay in the United States while the H-1B petition is pending, but cannot continue to work.