H-1B Cap Gap Extension
A cap-gap extension is a regulatory provision that extends an eligible F-1 student's status to bridge the gap between the end of F-1 status and the start of H-1B status, thereby allowing the student to remain in the U.S. during the "gap."
The H-1B cap is the limit on the number of H-1B's allowed each fiscal year. The fiscal year begins October 1, when a new batch of 85,000 H-1B visas becomes available. Employers can file an H-1B petition up to six months before the new fiscal year (April 1).
The cap does not apply to all H-1B visas. Certain non-profit research positions are exempt, such as those filed by academic institutions; therefore, the cap does not affect Carnegie Mellon University H-1B petitions. However, cap-exempt H petitions are not transferable to the private sector.
Cap-Gap Extension Eligibility
A cap-gap extension is available to students who, as of April 1 (the beginning of the H-1B filing season), were either on approved OPT or in their F-1 60-day grace period and had a pending or approved change-of-status H-1B petition with the U.S. Citizenship and Immigration Services (USCIS) starting on October 1 that was filed before the expiration of their OPT or 60-day grace period. Certain eligibility requirements apply, such as:
- If you are filing for H-1B via consular processing, you will not qualify for the Cap-Gap Extension. You must confirm with your employer if the H-1B is filed with a request for a change of status or via consular processing.
- If your employer files an H-1B (change-of-status) petition and USCIS receives it prior to your post-completion OPT expiration date, you qualify for a cap-gap extension of your OPT employment authorization.
- If your employer files an H-1B (change-of-status) petition and USCIS receives it after your post-completion, OPT expires, but during your 60-day grace period following OPT, your F-1 status and permission to remain in the U.S. are extended. However, you are not eligible to work.
Note: Only your employer can provide accurate, official updates regarding your H-1B application. OIE cannot provide information about your H-1B petition.
Requesting a Cap-Gap Extension I-20
If your H-1B (change of status) petition has been filed and received or approved by USCIS, you are eligible for an automatic cap-gap extension I-20 through September 30. If your current Post-Completion OPT or STEM OPT Extension EAD ends on or after September 30, you are not eligible for a cap-gap extension I-20 as you already have valid work authorization.
To request the cap-gap extension I-20, submit the Cap-Gap I-20 Request e-Form through your MyOIE Portal account. You will need to upload the following documents:
- A copy of your current EAD.
- A copy of your H-1B I-797 Receipt or Approval Notice.
OIE will issue a new cap-gap I-20 within ten business days. You will receive an email once your I-20 is ready. If you are in the 12-month OPT period, be sure you have updated your employer information using the OPT Reporting Portal. If you are on the STEM OPT Extension and have an employer update, make sure to request an updated STEM OPT I-20 through your MyOIE Portal. You will not receive a new EAD for your cap-gap extension.
OPT Expiring Before April 1
Although your F-1 status will have been extended if you were in your 60-day grace period when the petition was filed, your OPT employment authorization period has expired. The cap-gap does not serve to reinstate or retroactively grant employment authorization. Your legal status to remain in the U.S. in F-1 status is extended, but you must stop working until your H-1B goes into effect on October 1.
Delays with SEVIS System Reflecting H-1B Petitions
If OIE checks your SEVIS record and finds that your cap-gap has not automatically been applied to your SEVIS Record by USCIS, we will have to request a data fix from the SEVP Response Center. In these cases, we will have to submit a copy of your EAD card and your H-1B Receipt Notice or H-1B Approval Notice to SEVP. Processing times to correct records with the SEVP Help Desk can take from a few days to several weeks.
If your original OPT expires and your cap-gap extension data fix is still pending with SEVIS Response Center, your post-completion OPT will automatically extend, whether or not you apply for the cap-gap extension I-20. Therefore, you are allowed to continue working with your employer while the cap-gap extension data fix is pending. Also, keep in mind that the 90-day unemployment rule remains during your automatically extended work authorization, and you must continue to update your employer information.
Travel During Cap-Gap Extension
U.S. Department of Homeland Security (DHS) has clarified that a student can generally travel abroad and seek re-entry to the United States in F-1 status during a period of cap-gap extension so long as these three conditions are met:
- Your H-1B petition and request for a change of status have been approved.
- You seek readmission before your H-1B employment begins (normally at the beginning of the fiscal year - October 1).
- You are otherwise admissible. However, as with any other instance in which you seek admission to the U.S., admissibility is determined when you apply for admission at a port of entry.
Note: Traveling outside the U.S. may interfere with the processing of your H-1B petition. You need to consult with your employer regarding all travel plans before departing the U.S. If you must travel during the extension period and are not able to return on your F-1 visa, consult with the attorney that filed the H-1B petition, and be prepared to apply for an H-1B visa outside the U.S. and adjust your return travel plans accordingly. Under H-1B regulations, you may only enter the U.S. up to ten days before October 1.