Cap Gap Extension
Each year U.S. Department of Homeland Security releases 65,000 H-1B visas for professionals in “specialty occupations,” and an additional 20,000 H-1B visas for professionals who completed a Master’s degree or higher at a U.S. college or university. Since the annual H-1B “cap” of 85,000 is reached rather quickly, employers must generally submit petitions at the beginning of April to request a visa number for an employee they wish to sponsor. DHS accepts H-1B petitions for the first five business days in April and then, if they have received applications in excess of the cap, they will stop accepting applications and select H-1B visa applicants based on random visa lottery.
If you are an F-1 student graduating in May, it would be common for your F-1 grace period (or your OPT employment authorization) to end over the summer, which is several months before the start of H-1B on October 1.
In order to bridge the gap between the end of your F-1 status and the beginning of your H-1B status, USCIS offers “cap gap” extension. If you are in an authorized period of post-completion OPT (including STEM OPT) at the time your employer submits an H-1B petition on your behalf, your post-completion OPT employment authorization is also automatically extended.
You may be eligible for Cap-Gap extension if you are the beneficiary of an H-1B petition that:
- You are the beneficiary of an H-1B petition that was timely filed by a cap-subject employer
- The H-1B petition submitted on your behalf requests change of status in the U.S. and an employment start date of October 1st of the next federal fiscal year
- You have not violated the terms or conditions of your F-1 status
Cap-gap protection ends if the H-1B petition filed on your behalf is rejected, denied or withdrawn.
Cap Gap to Extend F-1 Status
If an H-1B petition was filed on your behalf after the end of your OPT (or STEM OPT) employment authorization, but during your authorized F-1 grace period, then your “cap gap” extension would allow you to remain in the U.S. until October 1st, unless your H-1B petition is rejected, denied or withdrawn. However, your OPT in this case would not be extended and you must cease employment on or before the day your OPT authorization expires.
Request Proof of Cap Gap Extension
If your employer has filed an H-1B petition on your behalf and your F-1 status or OPT (or STEM OPT) will expire before October 1st, it will be your responsibility to request an I-20 showing your “cap-gap” extension.
The ISSO does not automatically receive notification when you have a cap gap extension.
If you present proof of a qualifying “pending” or “approved” H-1B petition field on your behalf, we will be able to prepare a new I-20 issued to reflect your “cap-gap” extension of status, and extension of OPT work authorization (if applicable) until October 1st of the current year.
If an H-1B petition submitted on your behalf is “pending” or “approved” then your cap-gap will last until October 1st of the current year.
If an H-1B petition submitted on your behalf is “filed” or “waitlisted” you may be eligible for more limited cap-gap protection.
- Contact your employer to request copies of documentation demonstrating the receipt and/or approval of the H-1B petition filed on your 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
- 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
- Log into the Request Center of the ISSOPortal and select OPT- Cap Gap Extension to answer questions, upload required documentation to request a new Form I-20 showing the period of the extension.
TIP! If you plan to apply for both STEM OPT and also H-1B, it is preferable to apply for the STEM OPT first as your employment authorization dates will line up more appropriately. Consult your ISSO advisor to discuss your case options in more detail.
