What is the H-1B Cap-Gap and How does it affect F-1 Students?
The H-1B cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000.
Many employers file H-1B petitions on behalf of F-1 academic students during or after their post-completion OPT expires. Under the previous regulation (and unchanged by the Interim Final Rule published April 8, 2008), an employer could not file, and USCIS could not approve, an H-1B petition submitted earlier than six months before 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 petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start approved H-1B employment is October 1.
Consequently, prior to effective date of this rule, F-1 students who were the beneficiaries of approved H-1B petitions, but whose periods of authorized stay (including authorized periods of post-completion OPT and their grace period expired before October 1, had 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.
(Excerpt from SEVP Policy Guidance 0801-01)
Effective April 8, 2008, duration of status and any OPT work authorization will be automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting a change of status and an employment start date of October 1 of the following fiscal year. This applies to all qualified students on OPT, not just STEM students. The extension of the duration of status and OPT work authorization automatically terminate upon the rejection, denial, or revocation of the H-1B petition filed on the student's behalf. This benefit only extends OPT work authorization, not any other kind of F-1 work authorization. (Excerpt is taken from NAFSA Manual, 2008) F-1 students receiving a Cap-Gap Extension are still considered to be in F-1 status until the effective date of their H-1B approval. Students who have post-completion OPT extended due to the cap gap provisions continue to accrue unemployment time and are subject to the 90-day limitation on unemployment. In regards to the Cap-Gap Extension: The extension is automatically granted; however, SEVIS is not automatically updated to reflect the extension
Who qualifies for a Cap Gap Extension?
To qualify for the H-1B Cap-Gap Extensions [8 C.F.R. § 214.2(f)(5)(vi)]: The student must be the beneficiary of an H-1B petition that:
- has been timely filed;
- requests an employment start date of October 1 of the following fiscal year; and
- that requests a change of status. In addition,
- the student must not have violated the terms or conditions of her/his F-1 status,
- must be on a period of post-completion OPT [or OPT-STEM Extension].
How do I request a Cap Gap I-20?
What documents are needed in order to request a Cap-Gap I-20 extension based on your current H-1B petition status
Please identify your scenario below and submit to our office (ISSSO) the items listed accordingly:
- Your H-1B has been approved:
- A copy of the Form I-797 Approval Notice
- Your Petitions has been receipted:
- A copy of the Form I-797 receipt
- Where and how to submit:
Our office will do our best to accommodate your request, some cases can take a few weeks if our office has to request a data correction to SEVIS before your Cap-Gap I-20 can be generated.
For detailed information, please visit: U.S. Citizenship and Immigration Services.
What do I use to show I have work authorization?
Current SEVP guidance indicates after the post-completion OPT/OPT-X period expires, F-1 students may use their expired EAD card, updated I-20 reflecting the Cap-Gap extension, and any receipt/approval notices received to verify their employment eligibility and duration of F-1 status. In the event the H-1B petition is withdrawn or denied and it is past the post-completion OPT/OPT-X expiration date; contact firstname.lastname@example.org for further guidance and a possible appointment with an ISSSO counselor.
Can I travel if I am on a Cap Gap?
ISSSO recommends consulting with your immigration attorney if you intend on traveling outside the United States before the start of your H-1B or while your H-1B application is pending.
Is a Cap Gap I-20 mandatory?
Not at the present time; however, an I-20 reflecting your Cap Gap Extension will only be provided by request. This I-20 is the only written documentation you can receive confirming the extension of status/employment authorization and may be necessary for I-9 purposes. Consult the immigration attorney who filed your H-1B.
Federal documents discussing H-1B Cap Gap Extensions:
Federal Register, April 8, 2008.