The Cap Gap

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.

Eligibility for an Extension

H-1B petitions that are timely filed on behalf of an eligible F-1 student that request a change of status to H-1B on October 1 qualify for a Cap-Gap extension. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1 while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the "grace period"). Once a timely filing requesting a change of status to H-1B on October 1 has been made, the automatic Cap-Gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension of status will continue through September 30. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever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 United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the Cap-Gap extension period for status updates on the H-1B petition processing.

It is important to note that: 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.

Those Not Qualified 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, apply for an H-1B visa at a consular post abroad, and then seek readmission to 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-1Bpetitions, not to beneficiaries of cap-exempt H-1B petitions.

Proof of Continuing Status

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 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 his or her school. This document serves as proof of continued employment authorization.

If a student chooses to obtain an updated Form I-20, the student should go to his or her Designated School Official (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, showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO 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; it merely serves as proof of the extension of OPT employment authorization.

Denied H-1B Petitions

If an H-1B petition filed on behalf of an F-1 student covered by Cap-Gap 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 prepare for and 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 a F-1 student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both of these instances, students are required to immediately leave the United States.

Travel 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:

1.     The student’s H-1B petition and request for change of status has been approved;

2.     The student seeks readmission before his or her H-1B employment begins (normally at the beginning of the fiscal year, i.e., October 1); and

3.     The student is otherwise admissible.

 

However, as with any other instance when an individual seeks admission to the United States, admissibility is determined at the time the individual applies for admission at a port of entry. U.S. Customs and Border Protection (CBP) makes such determinations after inspecting the applicant for admission. Students should refer to CBP’s website for a list of the appropriate documentary evidence required to confirm eligibility for the relevant classification.