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OPT & the ‘Cap-Gap’

April 20th, 2015

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General Overview
Each year, many foreign students in the U.S. transition from F-1 status with Optional Practical Training (OPT) authorization to H-1B nonimmigrant status. As there are a limited number of H-1B visas available each fiscal year, this visa limit is commonly referred to as the “H-1B cap.”
U.S. immigration regulations require petitioning employers to submit H-1B petitions on April 1. However, newly-approved H-1B status does not become effective until October 1, which is the start of the fiscal year. A “cap-gap” typically occurs in the period of time between the expiration of a student’s F-1 status/OPT authorization and the commencement of H-1B employment.
To allow students to maintain F-1 status and work authorization during the “cap-gap” period, the government has created a mechanism called “the Cap-Gap Extension.” This extension allows certain students with pending or approved H-1B petitions to remain in the U.S. in F-1 status until the start date of their approved H-1B employment or until their petition is denied, revoked, withdrawn, or otherwise not selected.
Students: What You Need To Know

  • Timing Requirements:
  • Your H-1B petition indicating change of status (rather than consular processing) must be filed during the acceptance period beginning April 1 of each year.
  • Your authorized F-1 duration of status (D/S) must still be in effect at the time of filing the H-1B petition. For the purposes of the cap-gap, your F-1 status is “in effect” during any period of your academic course of study, any authorized periods of post-completion OPT, and during the 60-day “grace period” following the expiration of OPT in which you would otherwise prepare to depart the U.S.
  • After your petitioning employer files the H-1B petition, you will receive an automatic cap-gap extension. This extension will continue until the H-1B petition adjudication process is complete. If your H-1B petition is selected and approved, your extension will continue through September 30.
  • Please note: if your H-1B petition is filed during the 60-day “grace period,” you will still receive a cap-gap extension on your F-1 status, but you will not become authorized to work until October 1, if approved. This is because you would not technically be employment-authorized at the time of filing, so there would no longer be any employment authorization to extend. Thus, it is best to file for H-1B status before entering the 60-day grace period so you may continue to work while the petition pends and until October 1.
  • What You Should Do
  • Stay in close contact with your petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.
  • Obtain proof of continuing status from your Designated School Official (DSO) with evidence of your timely-filed H-1B petition indicating change of status. Acceptable evidence includes a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The DSO will then issue a preliminary cap-gap I-20 showing an extension of F-1 status until June 1.
  • If your H-1B petition is selected for adjudication, you should return to your DSO with a copy of your petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The DSO will issue a new cap-gap I-20 showing the continued extension of F-1 status.
  • Do not depart the U.S. during the cap-gap period. Doing so will forfeit your F-1 status and will require you to re-apply for an H-1B visa at a consular post abroad prior to returning to the U.S. Plan to remain in the U.S. until October 1, at the earliest.
  • The 90-day unemployment limit associated with your post-completion OPT authorization will continue during the cap-gap period. Thus, you must continue to work during this time. Any unemployment exceeding 90 days may subject you to an immigration status violation.
  • If you have a start date after October 1, but an OPT end date of September 30, please contact your DSO. Your DSO may request a data fix in SEVIS.

Employers: Acceptable I-9 Documents For Cap-Gap Period
Form I-9 is a U.S. Citizenship and Immigration Services form used by employers to verify an employee’s identity and eligibility to accept employment in the U.S. The documents below establish identity and employment authorization for students who have had their status and employment authorization extended through a cap-gap extension:

  • Acceptable Documents Include:
    • Student’s unexpired OPT Employment Authorization Document (EAD), or
    • Student’s expired OPT EAD with Form I-20 showing a cap-gap extension endorsed by the student’s DSO
    • Employer must enter these documents in Section 2 under List A
  • If the student presents an expired EAD, the employer should:
  • Record the document title;
  • Record the document number;
  • Record the date the EAD expired in the expiration date space; and
  • Write “Cap-Gap” in the margin of Section 2.

These documents are acceptable for establishing employment authorization until September 30 of the year in which the H-1B petition was filed or until the H-1B petition is rejected, denied, or withdrawn. Employers must reverify the student’s employment authorization in Section 3 when the Form I-20 cap-gap endorsement expires but not later than October 1.
Your Petition Has Been Denied: Now What?

  • If your H-1B petition has been denied, withdrawn, revoked, or otherwise not selected, you will have the standard 60-day grace period from the date of the rejection notice or your program end-date (whichever is later) to depart the country.
  • NOTE: this 60-day grace period will not apply if your change of status request is denied due to discovery of a status violation, misrepresentation, or fraud. The 60-day grace period and cap-gap extension will also not apply if your petition is revoked based on a finding of a status violation, fraud, or misrepresentation following approval. In either case, you will be required to depart the U.S. immediately.