H-1B Cap-Gap Extension
What is the H-1B Cap-Gap?
The H-1B cap is the limit on the number of H-1Bs allowed each fiscal year. Currently, the cap is 65,000. The fiscal year begins on October 1 when a new batch of the 65,000 H-1Bs becomes available. Employers are allowed to file an H-1B petition up to 6 months before the new fiscal year (April 1) so as to join the queue of new applications waiting for the October 1 date. See the USCIS web site (update link to this fiscal year) for the most current count of H-1B petitions filed. The cap does not apply to all H-1B visas. Certain non-profit research positions are unlimited.
What is a Cap-Gap extension and who is eligible?
The cap gap extension is a period in which an eligible F-1 student’s status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student’s post-completion OPT is also automatically extended. The eligibility date is the date a USCIS Service Center receives a properly filed Form I-129, Petition for a Nonimmigrant Worker, naming the student as a beneficiary of the petition from the prospective employer. The cap gap extension starts when the student’s current period of F-1 status ends, regardless of whether the student was in a period of OPT. However, if the student was not in a period of authorized post-completion OPT on the eligibility date, the extension of status starts on the day after the student’s initial grace period expires.
Can the Cap-Gap extension of OPT be extended beyond September 30 if the H-1B petition filed on the student’s behalf has not been adjudicated by USCIS?
No. Pursuant to 8 CFR 214.2(f)(5)(vi)(A), the duration of status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) and (C), of an F-1 student who is the beneficiary of an H-1B petition and request for change of status can only be extended until October 1. If the H-1B petition is pending beyond October 1, a student can remain in the United States based on the pending change of status petition. However, a student with OPT employment authorization extended through the Cap-Gap period must stop working until the H-1B petition is approved.
Will students receive personal notification when they have a Cap-Gap extension?
No. A student must remain in contact with the employer that filed the Form I-129, Petition for a Nonimmigrant Worker on the student’s behalf and with OIP.
How will students know if their Cap-Gap extension is terminated before September 30 due to a withdrawn or denied H-1B petition?
Students will not be personally notified by DHS of a withdrawn or denied H-1B petition, so they must remain in contact with their sponsoring employer and OIP. It is the student’s responsibility to check regularly on his or her status.
What proof will students have that they are entitled to the extension of employment authorization and status?
A Cap-Gap I-20 will be generated through SEVIS by an OIP Advisor that takes into account the different stages of the H-1B filing, selection, and adjudication process. The Cap-Gap I-20 will contain the following endorsement:
"F-1 status and employment authorization for this student have been automatically extended to [the applicable date will be inserted]. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR 214.2(f)(5)(iv) and 8 CFR 274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944)".
What happens if my H-1B is denied after applying for the Cap-Gap extension?
If USCIS denies your H-1B petition, your work authorization ends in 10 days, and you must depart the U.S. within 60 days after notification of the denial or rejection of the petition.
How do I apply for the Cap-Gap Extension I-20?
If your H-1B petition has been filed by your employer and receipted by USCIS, you are eligible for an automatic Cap-Gap extension I-20 through September 30th. To request this Cap-Gap extension I-20, send the following informatio to firstname.lastname@example.org with "Cap-Gap Extension" in the subject line:
- SEVIS Number
- Last Name, First name
- Date of Birth
- Employment Start Date and End Date (as indicated on EAD)
- Receipt Number
- EAD card
- The H-1B Receipt/or Approval Notice I-797B
An OIP Advisor will research your situation and then reply to your request.
Student responsibilities during the Cap-Gap period
Students must continue to meet all reporting requirements by informing OIP within 10 days of:
- Legal name changes
- A change in residential or mailing address
- Changes in employer, giving the employer name and employer address
- Loss of employment
- Students must inform OIP once the H-1B petition has been adjudicated (denied or approved)
- Remember to fulfill all other required reporting requirements as indicated on the "OPT Student Responsibilities Checklist"
Traveling during the cap-gap period
A student can travel and reenter the United States provided:
- The student has a valid F-1 visa at the time of reentry;
- The student has a Form I-20 that reflects the cap-gap benefit and that has been properly endorsed with International Student Advisor’s travel signature at OIP; and
- The H-1B petition filed on behalf of the student has been approved before the student travels (an applicant who departs the U.S. while a change of status application is pending is deemed to have abandoned the change of status application; in such a case, the student's cap-gap benefit would end)