By Jessabelle M. Koppelman, Esq. & Julie T. Oliver-Zhang, Esq.

Who qualifies for the “Cap-Gap” extension, and how does it work?

Many F-1 students are concerned about being out of status during the period between the end of their Optional Practical Training (“OPT”) and when their approved H1b visa begins in October. The Cap-Gap extension provides a solution for F-1 students under an approved post-completion OPT program, or the STEM extension post-completion OPT program who have a sponsoring employer for the H1b visa. The Cap-Gap extension is available to F-1 students whose OPT period expires before October 1st and who have been offered an H1b visa for a position with a U.S. employer. The “Gap” refers to the period after your F-1 OPT, STEM OPT, or 60-day grace period expires and before you may start H1b employment. The 60-day grace period refers to the time you are permitted to stay in the U.S. or change visa status after your OPT status expires. It is important to know how your H1b visa petition impacts your ability to extend your stay in the U.S.

USCIS permits certain students with pending or approved Cap-subject H1b visa petitions to remain in F-1 status so they do not have to leave the United States during the cap-gap period. To qualify for this extension, you must satisfy the below requisites:

• A U.S. company must timely file an H1b visa petition (I-129) with USCIS while the prospective beneficiary-student’s F-1 status is still valid or in their 60-day grace period. Please note that to qualify for the exemption, the employer must have first submitted Form I-129 and the form must be received before the expiration of the F-1 status or grace period.
• The prospective H1b employment offer must be subject to the cap.
• In the pending H1b visa petition (Form I-129), the employer must request a change of status to an H-1b.
• The prospective employment must begin on October 1st.

The cap-gap extension automatically begins once the petitioner timely files a request to change the beneficiary’s status to H1b. If the H-1B visa petition is approved, then the student’s extension of status continues through September 30th. As the extension is automatic, there is no need to file an application or receive a new Employment Authorization Document. Although not required, an F-1 student may obtain an updated Form I-20 as proof of the extension of OPT employment authorization. The exemption allows an individual and their F-2 dependents to legally stay in the U.S. Importantly, however, F-1 students who entered the 60-day grace period are not authorized to work during the cap-gap extension.

Alternatively, if the H1b visa petition is denied, withdrawn, revoked, rejected, not selected, of if the change of status request is denied or withdrawn, then the extension of status is automatically terminated.

Working in the U.S. is a great way to gain valuable experience and opportunities. To find out if you are eligible for the cap-gap extension, please contact us today at [email protected], or 202-643-1110 for a free immigration consultation with one of our experienced H1b lawyers. At Oliver-Zhang Law, we are devoted to providing you with the best H-1b visa services.