Office of International Programs (OIP)


H-1B Cap-Gap Extension Information

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

The term cap gap to refers to the period of time between the time a non-immigrant鈥檚 F-1 student status would ordinarily end and his or her H-1B status begins.

Under the previous regulation, the cap gap occurred when an F-1 student was the beneficiary of a successful H-1B petition, but his or her F-1 status ended before his or her H-1B status began. The time between the end of the F-1 status and beginning of H-1B employment was referred to as the cap gap.

The most common situation occurred when the student鈥檚 OPT ended in the spring or early summer, and his or her F-1 status expired 60 days after that, leaving a gap of several months before the individual鈥檚 H-1B status began on October 1.

Under the previous regulation, Department of Homeland Security could remedy this problem by publishing a Federal Register notice allowing students to remain in status in order to span the cap gap. However, this remedy was not automatic and did not allow the student to continue OPT during the gap period. This rule automatically extends the student鈥檚 F-1 status and/or work authorization.

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What is a "Cap Gap" Extension?

Under the new rule, the cap gap extension is a period in which an eligible F-1 student鈥檚 status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student鈥檚 post-completion OPT is also automatically extended.

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Information for Employers on Cap-Gap Extensions of OPT

If you are currently on OPT and your employer has filed a H-1B petition on your behalf, the Department of Homeland Security has posted a fact sheet for F-1 students to give to their employer to explain the nature of the H-1B cap-gap extension of optional practical training (OPT), assuming that your application is selected for consideration.

See "SEVP Provides F-1 Cap-Gap Fact Sheet For Employers" at http://www.nafsa.org/capgapforemployers

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Who is eligible for this "Cap Gap" extension?

The eligibility date is the date a USCIS Service Center receives 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 cap gap extension starts when the student鈥檚 current period of F-1 status ends, regardless of whether the student was in a period of OPT. However, if the student was not in a period of authorized post-completion OPT on the eligibility date, the extension of status starts on the day after the student鈥檚 initial grace period expires.

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Do students need to file an application or pay a fee to receive a cap gap extension?

No. The extension is granted automatically at no cost. However, as noted on the chart of events impacting the length of the cap-gap extension, a student may need to notify the DSO of his or her eligibility for the extension prior to the date USCIS issues a receipt for the H-1B petition listing the student as a beneficiary.

However, it is important to note that although the extension is automatically granted, SEVIS may not be automatically updated to show the extension. A student is responsible for checking with the DSO and verifying that his or her SEVIS record has been updated with the extension. See the section on how students know they have a cap-gap extension.

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What is the length of the cap gap extensions?

Due to the complexities involved, students will receive cap gap extensions in increments, as the petition goes through the steps of filing, receipting, and adjudication.
  • A student who is the beneficiary of a properly filed H-1B petition will have his or her OPT extended to June 1, 2009, and F-1 status extended to July 31, 2009
  • A student who is the beneficiary of wait listed H-1B petition will have his or her OPT extended to July 27, 2009, and F-1 status extended to September 26, 2009
  • A student who is the beneficiary of a receipted H-1B petition will have his or her OPT and F-1 status extended to September 30, 2009
A student whose H-1B petition is withdrawn or denied will have his or her OPT extension terminate 10 days after the date of the withdrawal or denial and their F-1 status extension will end 60 days after that. Termination of the automatic extension will not prematurely terminate a student鈥檚 period of approved OPT, as shown on the student鈥檚 employment authorization document or the student鈥檚 original period of F-1 status.

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Can the cap-gap extension of OPT be extended beyond September 30 if the H-1B petition filed on the student鈥檚 behalf has not been adjudicated by USCIS?

No. Pursuant to 8 CFR 214.2(f)(5)(vi)(A), the duration of status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) and (C), of an F-1 student who is the beneficiary of an H-1B petition and request for change of status can only be extended until October 1.

If the H-1B petition is pending beyond October 1, a student can remain in the United States based on the pending change of status petition. However, a student with OPT employment authorization extended through the cap-gap period must stop working until the H-1B petition is approved.

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

No.

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How will students know if they have a cap-gap extension?

A student must remain in contact with the employer that filed the Form I-129, Petition for a Nonimmigrant Worker, on the student鈥檚 behalf and with an OIP International Student Advisor.

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How will students know if their cap-gap extension is terminated before September 30 due to a withdrawn or denied H-1B petition?

Students will not be personally notified by DHS of a withdrawn or denied H-1B petition, so they must remain in contact with their sponsoring employer and OIP. It is the student鈥檚 responsibility to check regularly on his or her status.

To know if you may be eligible for a 60-day grace period should your H-1B petition be rejected, denied, or revoked, please see the chart of events.

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What proof will students have that they are entitled to the extension of employment authorization and status?

A cap gap Form I-20 will be generated through SEVIS by an OIP Advisor that takes into account the different stages of the H-1B filing, selection, and adjudication process. The cap gap Form I-20 will contain the following endorsement: 鈥淔-1 status and employment authorization for this student have been automatically extended to [the applicable date will be inserted]. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR 214.2(f)(5)(iv) and 8 CFR 274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944)".

Additional information about the automatic extension can be found on the Student and Exchange Visitor Program Web site at www.ice.gov/sevis.

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What happens if after I apply for the Cap-Gap Extension, my H-1B petition is denied?

If USCIS denies your H-1B petition, your work authorization ends in 10 days, and you must depart the U.S. within 60 days after notification of the denial or rejection of the petition.

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How do I apply for the Cap-Gap Extension?

If you have an H-1B Petition filed with the USCIS and your OPT is about to expire or already expired prior to the H-1B approval date:
  1. Send an email to oip@sfsu.edu with 鈥淐ap-Gap Extension鈥 in the subject line.
  2. Indicate the following in the email:
    • SEVIS Number
    • Last Name, First name
    • Date of Birth
    • Employment Start Date and End Date (as indicated on EAD)
    • Receipt Number
  3. Attach to the email a clear, legible copy (PDF preferred) of:
    • EAD card
    • The H-1B Receipt/or Approval Notice I-797B.
  4. The OIP Advisor will research your situation and then reply to your request.

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May I travel outside the United States during a cap gap extension period and return in F-1 status?

SEVP strongly recommends that students do not travel outside the United States during the cap-gap extension, if possible, as USCIS will consider a change-of-status application to be abandoned if the applicant leaves the country while the application remains pending. Thus, a change-of-status petition from F-1 to H-1B filed on behalf of a student with a cap-gap extension who departs the U.S. before the application is adjudicated could be denied.

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Do the limits on unemployment time apply to students with a cap gap extension?

Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap gap extension.

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Student responsibilities during the "Cap Gap" period

Students must continue to meet all reporting requirements by informing OIP within 10 days of:
  • Legal name changes
  • A change in residential or mailing address
  • Changes in employer, giving the employer name and employer address
  • Loss of employment
  • Students must inform OIP once the H-1B petition has been adjudicated (denied or approved)
  • Remember to fulfill all other required reporting requirements as indicated on the "OPT Student Responsibilities Checklist"

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