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. 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.
A. International Students and H-1B Status
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. 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.
B. F-1 Status Gap
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. Prior to 2008, in these instances, an F-1 student would have to leave the United States or apply for H-1B status at a U.S. consulate or embassy, and then seek readmission to the United States. But with 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 (EAD) to cover the additional time. 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 their designated school official (DSO). This document serves as proof of continued employment authorization.
If a student chooses to obtain an updated Form I-20, they should provide their DSO 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 student’s DSO will issue an updated Form I-20.
The student should return to their DSO 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 student’s DSO will issue another updated Form I-20, showing an extension until April 1of the fiscal year for which such H-1B status is being requested. In such situations, the student can continue to work while the update to their 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.
C. Cap Gap Extension
To deal with this situation, the U.S. Department of Homeland Security established regulations that automatically extend F-1 status and, if applicable, post-completion OPT employment authorization expiration date of anytime before April 1st to extend through April 1st of the relevant Fiscal Year for which H-1B status is being requested for F-1 holders with request for Change of Status. This gives DHS more flexibility to adjudicate the petition later or employee to continue to have their OPT/STEM EAD work authorization get automatically extended till then.
The cap refers to the limit on the number of individuals who can receive H-1B status every fiscal year. The gap is the period between the end of an individual’s F-1 status and the beginning of the individual’s H-1B status. The cap gap extension allows for some F-1 students to extend their F-1 status and/or authorized period of post-completion OPT until they transition to the H-1B status on Oct.
Cap Gap Extension Eligibility
This means an F-1 student filing for H1-B status on April 1 or later with a benefit start date of Oct. 1 or before April 1st of the relevant fiscal year 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 an immigration attorney or 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 April 1st 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 or earlier than April 1st of the relevant fiscal year.
- 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 STEM OPT) in the following circumstances:
- Your employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1st or earlier than April 1st of the relevant fiscal year.
- 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.
Proof of Continuing F-1 Status During Cap-Gap
The cap-gap extension of OPT is automatic for eligible students through April 1st of relevant fiscal year. A student does not file an application for the extension or receive a new Employment Authorization Document (EAD) to cover the additional time. 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 their designated school official (DSO). This document serves as proof of continued employment authorization.
If a student chooses to obtain an updated Form I-20, they should provide their DSO 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 student’s DSO will issue an updated Form I-20.
The student should return to their DSO 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 student’s DSO will issue another updated Form I-20, showing an extension until April 1of the fiscal year for which such H-1B status is being requested. In such situations, the student can continue to work while the update to their 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.
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.
Traveling on the 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).
- 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.
Those Not Qualified for a Cap-Gap Extension
F-1 students who do not qualify for a cap-gap extension and whose periods of authorized stay expire before the validity start date of their approved petition are required to leave the United States. They then need to apply for an H-1B visa at a consular post abroad, if applicable, 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.
Changes in Employment
- Laid off or terminated by the H-1B employer: If the student has been approved to change their status to an H-1B nonimmigrant but is laid off/terminated by the H-1B employer before the date they officially obtain H-1B status, the student can retrieve any unused OPT if they have an unexpired EAD issued for post-completion OPT. The student will remain in F-1 status and can continue their 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 USCIS from changing the student’s status to H-1B. Once the petition has been revoked or withdrawn, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (the notice of revocation). The DSO may then contact the SEVIS Help Desk 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 OPT employment.
The F-1 student can continue working with their approved EAD while the data fix in SEVIS is pending if:
- The (former) H-1B employer withdrew the H-1B petition before the effective date of the H-1B change of status;
- The student finds employment appropriate to their OPT;
- The period of OPT is unexpired (which would indicate that the student was not actually utilizing “cap-gap” since they otherwise had valid OPT authorization); and
- The DSO has requested a data fix in SEVIS.
Consequences of denied H-1B Petitions for F-1 in Cap Gap treatment
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.
The 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to a status violation, misrepresentation, or fraud. In such cases, the F-1 student is ineligible for cap-gap extension of status and the 60-day grace period. Similarly, the 60-day grace period and cap-gap extension of status does not apply to an F-1 student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both instances, students are required to immediately leave the United States.
While Waiting for a Data Fix in SEVIS
- Working while the data fix is pending: If the employer withdraws the H-1B petition before the H-1B effective date, the student may continue working while the data fix remains pending so long as:
- The student finds employment appropriate to their OPT;
- The period of OPT is unexpired (which would indicate that the student was not actually utilizing “cap-gap” since they otherwise had valid OPT authorization); and
- The student has not otherwise violated their F-1 status.
- Maintaining valid F-1 status: If the employer withdraws the H-1B petition before the date that the student officially changes to H-1B status, the student generally will remain in F-1 status while the data fix is pending. The student would have the standard 60-day grace period to depart the United States unless the H-1B petition was revoked because of fraud or violation of status.
If the employer withdraws the H-1B petition approval after the date that the student officially changes to H-1B status, the student’s status will have been changed from F-1 to H-1B. The student will no longer be in valid F-1 status and would need to file a Form I-539 if seeking to change back to F-1 status.
STEM OPT Extensions
F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in and maintain good standing with E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 24-month extension of such authorization.
Students who are eligible for a cap-gap extension of post-completion OPT employment and F-1 status may apply for a STEM OPT extension during the cap-gap extension period.
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 grace period.
Unemployment Limits during OPT and STEM OPT
The law allows you to be unemployed during your OPT period for a limited number of days.
| If you received… | You may be unemployed for… | For a total of… (during the OPT period) |
|---|---|---|
| Initial post-completion OPT only | Up to 90 days | 90 days |
| 24-month extension | An additional 60 days | 150 days |
Note: This is a blog post by Adhikari Law PLLC is for general information only and should NOT be construed as a legal advice.
If you want to learn more about Cap Gap, other immigration law questions, or about our legal services do schedule a consultation at contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7742, or email us at info@adhikarilaw.com