Office of International Programs (OIP)


What is the H-1B Cap-Gap?

The H-1B cap is the limit on the number of H-1Bs allowed each fiscal year. Currently, the cap is 65,000. The fiscal year begins on October 1 when a new batch of the 65,000 H-1Bs becomes available. Employers are allowed to file an H-1B petition up to 6 months before the new fiscal year (April 1) so as to join the queue of new applications waiting for the October 1 date. See the USCIS web site (update link to this fiscal year) for the most current count of H-1B petitions filed.

The cap does not apply to all H-1B visas. Certain non-profit reserach positions are unlimited.

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What is a Cap-Gap extension and who is eligible?

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.

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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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. 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 OIP.

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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.

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

A Cap-Gap 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 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)".

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What happens if my H-1B is denied after applying for the Cap-Gap extension?

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 I-20?

If your H-1B petition has been filed by your employer and receipted by USCIS, you are eligible for an automatic Cap-Gap extension I-20 through September 30th. To request this Cap-Gap extension I-20, send the following to oip@sfsu.edu with "Cap-Gap Extension" in the subject line:
  1. SEVIS Number
  2. Last Name, First name
  3. Date of Birth
  4. Employment Start Date and End Date (as indicated on EAD)
  5. Receipt Number
  6. Attach to the email a clear, legible copy (PDF preferred) of:
    • EAD card
    • The H-1B Receipt/or Approval Notice I-797B.

     

    An OIP Advisor will research your situation and then reply to your request.


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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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