H-1B
Cap Gap Extension
Requirements and Responsibilities
The interim F-1 OPT rule
published on April 8, 2008 provides an automatic, temporary extension
of duration of status and employment authorization for some F-1
students. These provisions apply to F-1 students who are the beneficiaries
of an H1B petition who, due to the cap on the number of H-1B
petitions accepted in a given year, cannot begin employment until
the beginning of the next fiscal (October 1st). In the past, the
F-1 status for these students often expired before their H-1B status
began — a period known as the cap gap. The most common situation
occurred when the student's 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's H-1B status began
on October 1st.
Cap Gap
Extension
Under the new rule, the
cap gap provides an extension of student status 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's
post-completion OPT employment authorization is also automatically
extended.
Requirements
for Eligibility for the H-1B Cap-Gap Extensions
Eligible students must be the beneficiary of an H-1B petition
that:
- was timely filed
- requests an employment start date of October 1st of the following
fiscal year
- requests a change of status
In addition, the student
must not have violated the terms or conditions of his or her F-1
status.
Basic
Provisions
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's 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's initial grace period expires.
Cap
Gap to Extend F-1 Status
For eligible students whose
post-completion OPT expired prior to the filing date of the H-1B
petition, the cap gap extension starts at the end of their grace
period and ends September 30th unless the H-1B petition for the
student is rejected, denied, or withdrawn. However, these students
will not have work authorization and must cease employment their
OPT authorization expires.
Cap Gap
to Extend F-1 OPT Employment Authorization
For eligible students with
active post-completion OPT, the cap gap extension for both employment
and F-1 status starts the date the student's original OPT expires
and ends September 30th unless the H-1B petition for the student
is rejected, denied, or withdrawn. In those cases, the employment
authorization ends and the grace period begins on the date of the
H-1 B rejection, withdrawal or denial.
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 2, 2008. An additional 60-day
grace period will extend their valid F-1 status to August 2,
2008
-
A student who is the
beneficiary of wait-listed H-1B petition will have his or her
OPT extended to July 28, 2008. An additional 60-day grace period
will extend their valid F-1 status to September 27, 2008
-
A student who is the
beneficiary of a receipted or approved H-1B petition will have
his or her OPT and F-1 status extended to September 30, 2008
Student
Procedures to Request Proof of Cap Gap Extension
Students will not automatically
receive notification when they have a cap gap extension. Therefore,
if the student's current grace period or F-1 OPT will expire before
October 1st, the student must:
- Contact their employer to request copies of documentation demonstrating
the receipt and/or approval of the H-1B petition filed on their
behalf. Examples of acceptable documentation include a copy of
the USCIS receipt/approval notice (Form I-797) or a copy of the
USCIS “wait list” letter to the employer.
- Forward copies of this documentation to the staff of the ISSO
and request a new Form I-20 showing the period of the extension.
The cap gap extension
will be terminated before September 30th if the H-1B petition is
withdrawn or denied. Students will not be personally notified by
DHS of a withdrawn or denied H-1B petition, so they must remain
in contact with the sponsoring employer and their ISSO advisor.
It is the student's responsibility to check regularly on his or
her status. While the automatic extension terminates when USCIS
rejects, denies, or revokes the H-1B petition, the student would
have a grace period after the termination during which s/he is authorized
to remain in the United States for up to 60 days to prepare for
departure from the U.S., change degree level, transfer, change status,
etc. as long as the student has not otherwise violated status.
The rule states that this
benefit is only available if the H-1B petition requested a change
of status. USCIS recently announced that they will convert
petitions that had requested consular processing to change of status
if the employer requests USCIS to do so within 30 days of the I-797
Receipt and/or Approval Notice being produced. More information
can be found on the USCIS
web site.
Travel Outside of the U.S. During Cap Extension
Since these provisions are so new and since there is no clear documentation,
students are strongly recommended not to depart the country during
the period of their cap gap extension until they qualify for travel
in H-1B status.
NOTE: that this is an interim rule.
While the provisions of this interim rule took effect on April 8,
2008, they are subject to change before the final rule is published.
Students are encouraged
to contact
the staff of the ISSO with questions relating to the cap gap,
eligibility requirements and documentation procedures.
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