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H-1B Cap Gap for F-1 Students

What is the H-1B Cap?

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.

The earliest date that a cap-subject employer can file an H-1B petition for consideration under the next fiscal year cap is April 1, for an October 1 start date. If that H-1B petition and the accompanying change of status request are approved, the effective date of the H-1B status will be October 1.

F-1 students who are the beneficiaries of approved H-1B petitions, but whose periods of authorized stay (including authorized periods of post-completion OPT and their grace period) expires before October 1, may not have to leave the United States, and have the possibility of changing status to H-1B in-country. The regulations permit what is referred to as the “cap gap extension,” explained below.

Please note that some employers, such as educational institutions and some non-profit organizations, are cap-exempt, and can file an H-1B petition on behalf of an employee at any time of year.

What is the F-1/ H-1B "Cap Gap" Extension?

The term “cap gap” refers to the period of time when an F-1 non-immigrant's student status would ordinarily end and his or her H-1B status begins. That is to say, the period of time between the end of the 60-day grace period following the expiration of Optional Practical Training (OPT) and the start of the H-1B status.

A student should be eligible for the extension of duration of stay in the United States, as well as work authorization, through September 30 (the day prior to H-1B status taking effect) when these conditions are filled:

  • A USCIS Service Center has received 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 student's OPT expires on or after April 1 and before September 30
  • The petition was received by the Service Center prior to the student's OPT end date

If a student has a pending H-1B petition submitted, and on April 1 is in his/her grace period following the expiration of OPT, the student is eligible for an extension of stay through September 30, but not for an extension of work authorization.

If the H-1B petition is withdrawn or denied during the cap gap period, the student becomes ineligible for the extension. If the H-1B petition is still pending on October 1, the student is not authorized to continue working, but is authorized to remain in the United States.

Due to the complexities involved, students may receive cap gap extensions in increments, as the petition goes through the steps of filing, receipting and adjudication.

Example scenarios

Here are two examples of students eligible for the cap gap extension:

  • “Antonio” has been approved for OPT for the dates 5/1/13 – 4/30/14. His employer files an H-1B petition for him on 4/1/14, so that on 4/30/14 when Antonio's OPT expires, he has a pending H-1B application. Therefore under the cap gap extension, he is eligible to continue working for his employer between 5/1/14 – 9/30/14. He requests a new I-20 from OIA, which shows the extension of his F-1 status and work authorization.
  • “Chen” has been approved for OPT for the dates 2/15/13 – 2/14/14. Her employer files an H-1B petition for her on 4/1/14, while she is in her 60-day grace period. Because she has a pending H-1B application, she is able to remain in the U.S., but she cannot continue working for her employer, because she was not in an approved period of OPT when her H-1B petition was filed. She requests a new I-20 from OIA, which shows that her F-1 status (but not her work authorization) has been extended through 9/30/14. Chen's employer receives notification that her H-1B has been approved on 8/1/14. She remains in the US and resumes working on 10/1/14, when her change of status to H-1B takes effect.

Will students receive personal notification when they have a cap gap extension?

The extension is granted automatically, at no cost, but the new I-20 is not automatically issued to eligible students, and the student must notify an immigration coordinator at the Office of International Affairs of his or her eligibility for the extension.

Students in need of a H-1B cap gap extension verification must submit the following to an immigration coordinator:

  • Photocopy of Employment Authorization Document (EAD card)
  • Notification Form – H-1B Cap Gap Extension
  • One of the following as proof of having timely filed a H-1B Petition
    • For a properly filed H-1B petition:
      A statement from the employer that the student is the beneficiary listed on a properly filed H-1B petition and proof of delivery to a USCIS Service Center showing the date of receipt
    • For a wait-listed H-1B petition:
      A copy of the wait list letter from USCIS to the employer
    • For a receipted or approved H-1B petition: 
      A copy of the Form I-797

Student responsibilities during the "Cap Gap" period

Student must continue to meet his or her reporting requirements:

  • Report to their DSO within 10 days of:
    • Legal name changes
    • A change in residential or mailing address (update the "current" address field through Buckeyelink)
    • Changes in employment
    • Loss of employment
  • Providing us with a copy of the approval or denial notice once the petition has been adjudicated

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