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Cap-Gap Rules – OPT and H1B Visa

**This Cap-Gap post is part of series of post about F1 Visa Rules. Refer to the Table of contents at end of this post**

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Following Q&A is pasted from USCIS Cap-Gap Page.

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment 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.

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.  Consequently, 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.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?
A3. 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.

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
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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 has been made, requesting a change of status to H-1B on October 1, 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 will continue through September 30 unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition 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.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?
A4. The student should go to their 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 a preliminary cap-gap 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 a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. 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 of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

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 the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status 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.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended?
A7. That is correct.  F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, 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 cap-gap 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-1 petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?
A8:  Yes.  The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. 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 E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization.  F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
A10. Yes.  However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date.  However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date.  What should the student do to correct this?
A11. The student should contact their DSO.  The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

  • The student finds employment appropriate to his or her OPT
  • The period of OPT is unexpired; and
  • The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date.  Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?
A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Series – F1 Visa Rules

Following other related posted from F1 Visa Rules series.

30 Comments

  1. Adi on July 25, 2016 at 1:05 AM

    Hi,

    Here is my situation.

    My H1B has been filed and it is picked up in lottery. But it is yet to be approved.

    I am on Pre-Completion OPT currently, in a PhD program which will end on August 31, as I will not continue PhD after this term, which ends on August 31.

    I cannot apply for Post-completion OPT, as I did not complete my PhD and I already used my OPT for my Masters in the past.

    My question is, do I qualify for Cap-Gap extension to continue work from Sept1- Sept 30 until my h1B starts on October ?

    Please let me know.

  2. Eshwar on August 4, 2014 at 7:09 PM

    Hi Raghu,
    Can you please respond to my questions I am unable to find answers for my questions in any of the forums. I would realy appreciate your help.
    1. My OPT extension expires on March 31st 2015 and I wiil be in 60 day grace period when my employer files my H1B petition in April 1st week of 2015. In case if my H1B application is denied or not picked in lottery next year.. then will there be a 60 day grace period again from the date of H1B denial so that I will have time to enroll back into school again ?
    2. As my OPT extension is expiring on March 31st, just the day befor my employer can file my H1B application. Will it be possible to request or keep a petition through attorney to USCIS for CAP-GAP extension with work authorization till OCT 2015 (as in my case I will not have work authorization beacuse my OPT extension expired befor April 1st if my H1B is approved).
    3. Even though my employer can file my H1B.. can USCIS send an RFE for my H1B petition 2015 saying without work authorization for my CAP-GAP how am I employed ?
    Thank you,
    Eshwar

    • Raghuram Sukumar on August 5, 2014 at 11:39 AM

      I can say this.. you need to consult an attorney, when you have questions affecting your legal status in USA, spend money to get consultation. Forums and blog are ok when you are looking for answers like if others got H1b approved, when it comes to your status in question, get legal help.

  3. SRO on July 3, 2014 at 1:40 PM

    I have applied for my H1B visa but dont have the receipt number yet, but my OPT expires on July 14th. CAn I continue working after July 14th without the H1B receipt number?

    • Raghuram Sukumar on July 5, 2014 at 9:26 AM

      If your H-1b is selected or filed in timely manner, then you should be able to continue work till Sep 30, 2014.

      What did your attorney say?

  4. Parul on May 11, 2014 at 10:01 AM

    My H1B got approved this year. My OPT is expiring on June 30th 2014. Can i change employers between CAP-GAP or can change employer before my OPT expires (i.e. before June 2014) Please help!

    • Raghuram Sukumar on May 11, 2014 at 10:51 AM

      Sorry, I don’t have an answer for this. Talk to an attorney. I wouldn’t trust forums answers in your scenario because its can directly impact your legal status in USA.

  5. pooja on May 9, 2014 at 8:32 PM

    Could I enroll on F1 again post OPT completion and after preliminary cap gap extension if I havent got a H1B receipt because of USCIS delays?

  6. calena on January 24, 2014 at 1:04 AM

    Could I take classes again after finishing a post -completion OPT/? I would like to become a student again and take more courses. Look forward to be more trained in that area. I will appreciated if you give me an advice about this subject, thanks so much

    • Raghuram Sukumar on January 24, 2014 at 8:10 AM

      You can convert to F1 again. Talk to your college DSO.

  7. Sushma on December 4, 2012 at 4:46 PM

    My employer will be applying for my H1 in April 2014.When will I be able to change employers assuming its approved?

  8. Sushma on December 4, 2012 at 4:42 PM

    Hi My OPT extension is valid till March 17th. Can my employer still apply for my H1 on April 2013. Also will I be authorized to work for the days between March 17th and till/if I get my approval for H1B?

  9. Manasa on December 2, 2012 at 11:58 PM

    Hi,
    my extension OPT is ending in June 2013. Can I go to India in march for a month before 2 months of my OPT. Is that would be a problem while I am returning? Can I come back on OPT status itself? please advise

  10. tiya on November 1, 2012 at 6:05 AM

    Hi,
    i am on L2-EAD. Now my L2 is expired but I94 and EAD is valid till Sept 2013. I am working now. My husband is going to change his status from L1 to F1 in july 2013 and my consultancy is planning to apply for H1b next year i.e. April 2013. Is it possible that i can work after my L2-EAD is invalid (((i.e. because my hubby is going to change L1 to F1))) but i filed petition for H1B.

  11. Sarika on October 26, 2012 at 7:57 PM

    I have applied for h1b visa in 2007 and got approved but because of my pregrance and complication i had to revoke it and it was valid till 2010 can I reinstate the visa that I did not use… Currently I m on h4 …. If yes do I need to reinstate my h1 through same consultant or I can change.,can u suggest

  12. Abhishek on October 26, 2012 at 5:10 AM

    Appreciate if you can answer a question for me. I have a approved and stamped VISA till JAN 31, 2013. I have to go to India for a week’s vacation and will be back to US by NOV 6. Just wanted to check, if there will be any issues at port of entry as I will have 84-85 days on my VISA.

  13. bvempallirgav on October 22, 2012 at 8:17 PM

    My H1 was filed by Employer A and due to some issues i have chnged to employer B in september (my H1 did not start yet) on september 13 my old employer revoked my h1b and my new employer filed my h1b on 24th of september USCIS is asking to provide some support documentation. And my opt will expire on 27th of november can any one tell me about the documentation to provide to the USCIS and also does cap gap applies for me if I want to change my status to CPT

  14. Queena on August 29, 2012 at 6:50 PM

    Regarding your Q10, does the student need to have his or her employer request the withdrawal of the approved or pending H-1B petition first in order to apply the 17-month OPT extension?

    Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
    A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

  15. Taj on May 29, 2012 at 7:11 PM

    H1 was applied for in early May, it is for a college, and my OPT expires May 31 will I be able to continue working if I don’t receive the 1-797 before the end of the OPT? Thanks

  16. Ravi kumar on March 18, 2012 at 6:19 PM

    Hi I was in OPT from Jan 08 – Dec 31 st 2010, I have timely filed my H1B before the expiration of my OPT, I have filed my H1B petition with receipt date as September 1st requesting start date of H1B from October 1st 2010, I have actually received my approved H1B petition with validity from May 31st 2011. assuming I was in Cap gap period from Dec 2010 to May 31st, does the “cap gap period apply automatically” as I have timely filed my H1B with requesting start date before expiration of my OPT. I had a same job continuously from the period of OPT till I got my H1B and was continuously working till I got my h1B, am I eligible to work automatically within this CAP GAP Period and I applied for a CAP GAP I-20 with request start date from Jan 28th, 28 days after my OPT expired,

    Please let me know whether I was eligible to work during all that time and I have 28 days gap between Cap Gap I -20 and OPT expiration period ?

    If it is an issue what are the consequences I am supposed to face ? do I have any remedies to fix it

    Thanks in Advance for your kind help…

  17. bluestar on February 14, 2012 at 10:07 AM

    my opt extension is expiring in 2 weeks, and my h1 decision is still pending, can i continue working after my opt expires with valid h1 receipt even if decision still pending

    • HSB on February 14, 2012 at 10:21 AM

      Above article has answer to your question.

  18. Manoj on February 12, 2012 at 1:59 PM

    What will happen to the H1B visa status, if a someone wishes to study. Obviously for studying the student has to apply F1 visa. So what happens to H1B he had before. Is there any option to use the earlier H1B visa after studying?

    • HSB on February 12, 2012 at 2:35 PM

      Can you provide more details. Are you asking about F1 to H1B or H1B to F1?

      • Manoj on February 12, 2012 at 3:01 PM

        Ya sure. I am on H1B visa now. I am planning to do MS in CS (Fall 2012). I will leave to India by April and apply for F1 visa. Then I will come back to US for studying in F1 visa. By the time I complete my studies what will be the status of H1B visa I am having now. Since I wont be in US till the beginning of Fall, I believe I cant apply for status change from H1B to F1.

        • HSB on February 12, 2012 at 3:05 PM

          You can change from H1B to F1 without going to India. But, when you leave USA, you need to get F1 stamping to enter US.
          Once, F1 is done, you can do COS to H1B (you will not come under quota again). H1B counts only the days you are inside USA.

          • Manoj on February 12, 2012 at 4:32 PM

            Whats the point in changing H1B to F1 if I have to do F1 stamping ? I will be leaving to India for sure. So if I have to do F1 stamping, then I have to attend visa interview also rite.? Are there any advantage in doing status change from H1B to F1 over applying for F1 after going to India?



          • Manoj on February 12, 2012 at 4:32 PM

            Also what does COS to H1B means? Sorry I am very new to these.. so not aware of these jargons.



          • HSB on February 12, 2012 at 4:47 PM

            Search in the blog for more details.



          • HSB on February 12, 2012 at 5:28 PM

            Change of Status.



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