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You're an F-1 student and you're excited that your H-1B Cap case got filed! Then you realize that your F-1 OPT status is expiring in July. What are you supposed to do? You search online and one of the first hits you see is something called the Cap-Gap. What is the Cap-Gap and how can it help you?
What is the Cap-Gap?
The Cap-Gap provides for automatic extensions of the F-1 status for certain students to bridge the gap between the end of their student OPT status and the start date of their approved H-1B employment. October 1st is the earliest date a cap-subject H-1B employee may start working in H-1B status. However, due to the typical academic calendar, many students’ F-1 status and OPT authorization expire around summertime. Therefore, the Cap-Gap rule was issued to allow these students to continue to stay in the U.S. while their H-1B petition is pending and adjudicated.
F-1 students who have entered the 60-day grace period are not employment-authorized. If an H-1B cap-subject petition is filed on the behalf of 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 become employment-authorized since the student was not employment-authorized at the time H-1B petition was filed.
If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the US.
Who’s Eligible for the Cap-Gap?
F-1 students who filed an H-1B Change of Status petition in a timely manner and are on an authorized OPT on the date USCIS receives the petition are automatically eligible for the Cap-Gap extension of their OPT. A change of status petition is filed for someone currently in the U.S. on another U.S. status such as the F-1 who is looking to change to H-1B status. This would allow the student to continue working from the time their OPT expires to September 30th, the day before their H-1B is activated.
How Do I Get a New I-20 After My H-1B Cap Petition is Filed?
Students should contact their designated school official (DSO) to request for a new I-20 to reflect the extended OPT permission to work until September 30th. The student should provide the DSO with a copy of the petition, proof of mailing, or receipt notice.
What Other Options Do I Have Besides the Cap-Gap?
F-1 students who have a degree in the field of science, technology, engineering, or mathematics (STEM) are eligible for an OPT extension. In addition to the 12-month OPT period after graduation, those with a STEM degree may also apply for a 24-month extension of their post-completion OPT employment authorization. However, if their H-1B petition is not accepted into the lottery, is revoked, withdrawn, or denied and the student has entered the 60-day grace period, the STEM extension cannot be filed. It is recommended for F-1 students to apply for the OPT extension if they qualify!
If you have additional questions, please feel free to reach out to us at support@bridge.legal.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.
