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What is
a “Cap-Gap”?
Current regulations allow certain F-1
students with pending or approved H-1B petitions to remain in F-1
status during the period of time when the student’s status and work
authorization would otherwise expire through the start date of their
approved H-1B employment period. This is referred to as
filling the “cap-gap,” which refers to filling the “gap” between the
end of F-1 status and the beginning date of H-1B status.
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Who qualifies for
a cap-gap extension?
H-1B petitions that are timely filed, on
behalf of an eligible F-1 student, that request a change of status
from F-1 to H-1B status on October 1, qualify for a cap-gap
extension. "Timely filed" means that the H-1B petition
was filed during the H-1B acceptance period which begins April 1,
while the student's authorized F-1 duration of status admission was
still in effect (i.e. during academic course of study, Optional
Practical Training (OPT), and the 60-day departure preparation
period , commonly known as the “grace period”). Once a
timely filing has been made, the automatic cap-gap extension will
begin and will continue until the H-1B petition adjudication process
has been completed. If the student’s H-1B petition is selected
and approved, the student’s extension will continue through
September 30 unless the petition is denied, withdrawn, or revoked.
If the student’s H-1B petition is not selected, the student will
have the standard 60-day grace period from the date of the rejection
notice or their program end date, whichever is later, to prepare for
and depart the United States.
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How does a student covered under the cap-gap extension obtain proof
of continuing status?
The student should go to their
Designated School Official (DSO) with evidence of a timely filed
H-1B petition requesting a change of status, such as a copy of the
petition and a FedEx, UPS, or USPS Express/certified mail receipt.
The DSO will issue a preliminary cap-gap I-20 showing an extension
until June 1. If the H-1B petition is selected for
adjudication, the student should return to the DSO with a copy of
the 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 indicating the
continued extension of F-1 status.
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Is a student who becomes eligible for an automatic cap-gap extension
of status and employment authorization, but whose H-1B petition is
subsequently rejected, denied or revoked, still allowed the 60-day
grace period?
If USCIS denies, rejects, or revokes an
H-1B petition filed for an F-1 student covered by the automatic
cap-gap extension of status, the student will have the standard
60-day grace period (from the date of the notification of the
denial, rejection, or revocation of the petition) before he or she
is required to depart the United States. For denied
cases, it should be noted that the 60-day grace period does not
apply to an F-1 student whose accompanying change of status request
is denied: due to the discovery of a status violation; or based on a
finding of fraud or misrepresentation discovered following approval.
The student in this situation is not eligible for the automatic
cap-gap extension of status or the 60-day grace period and the
student would be required to leave the United States immediately.
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May students travel outside the United States during OPT or during
the cap-gap extension period and return in F-1 status, after an H-1B
petition has been filed on their behalf?
SEVIS is updated when an F-1 student is
the beneficiary of an I-129/H-1B petition and that this can cause
them to be denied entry when they attempt to travel on their F-1
student visa stamp. When F-1 students enter the United States on a
student visa, they will usually be admitted for the duration of
their student status. That means they may stay as long as they are a
full-time student, even if the F-1 visa in their passport expires
while they are in the United States. To travel outside the
United States and return, however, students need to be in possession
of a valid student visa. In addition to a valid student visa,
students also need to submit a SEVIS-generated Form I-20 which is
provided to them by their school. The student and DSO must have
signed the Form I-20 within the last 12 months.
- OPT -
(1) A student who has an unexpired EAD
issued for post-completion OPT and who is otherwise admissible, may
return to the United States to resume employment after a temporary
absence. The EAD must be used in combination with an I-20 ID
endorsed for reentry by the DSO within the last six months.
(2) If it appears that the student is no
longer working for the OPT employer, and wishes to enter to travel
or vacation until the H1B job begins, the student will likely be
denied entry, as she or he is considered to no longer be in a valid
student status.
(3) If the student is in a valid student
status, and has the proper documents, a pending or approved I-129
H-1B petition should not affect his or her ability to travel.
Because of occasional problems in the connection between USCIS’s
Claims system and SEVIS, the DSO should check that the student’s
status is still active in SEVIS.
- Cap Gap -
The EAD of an F-1 student covered under
a cap-gap extension, however, is considered expired. Consequently,
if a student granted a cap-gap extension elects to travel outside
the United States during the cap-gap extension period, he or she
will not be able to return in F-1 status. The student will need to
apply for an H-1B visa at a consular post abroad prior to returning.
As the H-1B petition is presumably for an October 1 or later start
date, the student should be prepared to adjust his or her travel
plans accordingly.
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What if a student’s post-completion OPT has expired and the student
is in a valid grace period when an H-1B cap-subject petition is
filed on their behalf?
It appears that F-1 status would be
extended, but would OPT also be extended? These student
are not employment-authorized. Consequently, if an H-1B
cap-subject petition is filed on the behalf of a student who has
entered the 60-day grace period, the student will receive the
automatic cap-gap extension of his or her F-1 status, but will not
become employment-authorized (since the student was not
employment-authorized at the time H-1 petition was filed, there is
no employment authorization to be extended).
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Do the limits on unemployment time apply to students with a cap-gap
extension?
The 90-day limitation on unemployment
during the initial post-completion OPT authorization continues
during the cap-gap extension.
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What is a STEM OPT extension?
F-1 students who receive science,
technology, engineering, and mathematics (STEM) degrees included on
the STEM Designated Degree Program List, are employed by employers
enrolled in E-Verify, and who have received an initial grant of
post-completion OPT employment authorization related to such a
degree, may apply for a 17-month extension of such authorization.
F-1 students may obtain additional information about STEM OPT
extensions on the Student and Exchange Visitor Program website at
www.ice.gov/sevis.
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May a student eligible for a cap-gap extension of post-completion
OPT employment authorization and F-1 status apply for a STEM OPT
extension while he or she is in the cap-gap extension period?
Yes. However, such application may not
be made once the cap-gap extension period is terminated (e.g., if
the H-1 petition is rejected, denied, or revoked), and the student
has entered the 60-day departure preparation period.
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In recent years, employers have been able to file H-1B cap-subject
petitions after April 1, and have not always requested an October 1
start date. However, some students’ OPT end dates were nevertheless
shortened to September 30, even though their H-1B employment would
not begin until a later date. What should the student do to correct
this?
The student should contact their DSO.
The DSO may request a data fix in SEVIS by contacting the SEVIS
helpdesk.
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If the student finds a new H-1B job, can he or she continue working
with his/her approved EAD while the data fix in SEVIS is pending?
Yes, if the (former) H-1B employer
timely withdrew the H-1B petition and the following conditions are
true: The student finds employment appropriate to his or her OPT The
period of OPT is unexpired; and The DSO has requested a data fix in
SEVIS Note: If the student had to file Form I-539 to
request reinstatement to F-1 student status, the student may not
work or attend classes until the reinstatement is approved.
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If the student has an approved H-1B petition and change of status,
but is laid off/terminated by the H-1B employer before the effective
date, and the student has an unexpired EAD issued for
post-completion OPT, can the student retrieve any unused OPT?
Yes, but only if USCIS receives the
withdrawal request from the petitioner before the H-1B change of
status effective date. Once the petition has been revoked, the
student must provide their DSO with a copy of the USCIS
acknowledgement of withdrawal (i.e., the notice of revocation). The
DSO may then request a data fix in SEVIS by contacting the SEVIS
helpdesk. If USCIS does not receive the withdrawal request
prior to the H-1B petition change of status effective date, then the
student will need to file a Form I-539 to request reinstatement and
wait until the reinstatement request is approved, before resuming
employment.
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Can the student work past October 1 on their OPT (their EAD card
will still show the original end date) if the request to change the
end date back is pending?
If the H-1B revocation occurs before
October 1, the student may continue working while the data fix
remains pending, because the student will still be in valid F-1
status. If the H-1B revocation occurs on or after October 1,
the student will need to apply for reinstatement and wait until the
reinstatement request is approved before resuming employment.
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Are students in valid F-1 status while the request to change the OPT
end date is pending?
If the H-1B revocation occurs before the
H-1B change of status effective date, the student is still deemed to
be in F-1 status while the data fix is pending. If the H-1B
revocation occurs after the H-1B change of status effective date,
the student will not be in valid F-1 status and will therefore
either need to apply for reinstatement or depart the United States.
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