Information provided by USCIS.
Information provided by USCIS.
Current regulations permit certain F-1 students with pending or approved H-1B visa petitions to stay in F-1 immigration status while 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 known as filling the “cap-gap,” which is in reference to filling the “gap” between the end of F-1 status and the beginning date of H-1B status.
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is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked.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.
PLEASE NOTE: F-1 students who have entered the 60-day grace period are not employment-authorized. 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 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-1B petition was filed.
The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, issued to the student by his or her DSO. This document serves as proof of continued employment authorization.
If a student chooses to obtain an updated Form I-20, the student should go to his or her Designated School Official (DSO) with evidence of a timely-filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an updated Form I-20, showing an extension until June 1.
If the H-1B petition is selected for adjudication, the student should return to his or her 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 student’s DSO will issue another updated Form I-20, showing an extension until October 1. In such situations, the student can continue to work while the update to his or her Form I-20 is being processed. Because the Cap-Gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.
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.
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.
(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.
An F-1 student may generally travel abroad and seek readmission to the United States in F-1 status during a Cap-Gap period if:
However, as with any other instance in which an individual seeks admission to the United States, admissibility is determined at the time the person applies for admission at a port of entry. U.S. Customs and Border Protection (CBP) makes each determination after inspecting an applicant for admission.
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 students 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).
The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap 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 24-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.
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-1B petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.
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.
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.
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 acknowledgment 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.
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.
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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