What is the Cap-Gap Extension?
USCIS has provided the “cap-gap” of employment authorization between OPT’s expiration date until H-1B’s effective 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 OIS 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?
- Current 12-Month OPT students in valid F-1 status with an approved period of post-completion employment period with a future OPT expiration date
- Current STEM OPT Extension students in valid F-1 status with an approved period of post-completion employment period with a future OPT expiration date
Note: The OPT expiration date must always be AFTER the date the H-1B petition was filed.
A student, whose post-completion 12-Month OPT or STEM OPT 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?
OIS will process an I-20 that takes into account the different stages of the H-1B filing, selection and adjudication process. The Cap-Gap Extension I-20 will contain an endorsement that F-1 status and employment authorization 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 EAD (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?
Students must wait until they or their employer’s immigration attorney have received the I-797 Receipt Notice for their H-1B petition. This will insure that their extension is valid until September. 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.
Exception: Students whose 12-Month OPT or STEM OPT Extension expires before June 1st can submit the Cap-Gap Extension I-20 Request application with employer statement of application filing and proof of delivery documentation that USCIS has received their H-1B petition.
Students must submit by email the following documents as PDF attachments to email@example.com. Write “Cap-Gap Extension: First Name and Last Name” in the subject line.
- Completed OIS “Cap-Gap Extension I-20 Request“
- If H-1B 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
- 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.
- Copy of current I-20
- Copy of front of current EAD (Employment Authorization Document)
How long will the Cap-Gap Extension request take to process with OIS?
OIS will process the Cap-Gap Extension I-20 within seven business days of the student’s submission by email. Incomplete application will be rejected and must be resubmitted.
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 12-Month OPT authorization continues during the cap-gap extension and the 120-day limitation on unemployment under the STEM OPT extension guidelines.
May a student eligible for a Cap-Gap Extension of status and employment authorization apply for STEM OPT Extension while he or she is in the Cap-Gap Extension period?
Yes, the STEM OPT Extension 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 grace 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 U.S. consular post abroad (consular processing) prior to returning to the U.S. Due to the H-1B visa status’ October 1st effective 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 period.