The automatic cap-gap extension of OPT was implemented by USCIS in order to assist foreign students who have been sponsored for an H-1B visa. The typical cap-gap situation occurs when an F-1 student graduates in May and obtains a one year OPT ending the following year sometime between April and October. In most cases, the F-1/OPT student finds a job during the OPT time and the employer files an H-1B petition on their behalf so that the student can remain employed after the OPT expires. The problem was created when the H-1B quota began running out earlier and earlier each year. In all practicality, the H-1B now has to be filed on April 1st, but the visa won’t take effect until October 1st. If a student’s OPT expires in between April and October, they are caught in a “cap-gap”.
In the past, the student would either need to leave the country and wait until October 1st to come back to work, or re-enroll in classes to maintain the F-1 status until October 1st when the H-1B would kick in. Now, a student with a pending H-1B petition requesting a change of status will automatically be eligible for a cap-gap extension of the OPT. This allows the student to continue working from the time the OPT expires to September 30th. The H-1B would theoretically start on October 1st and there would be a seamless transition from OPT to H-1B. The extension is automatic; no action needs to be taken by the student. If documentation of the extension is needed for a driver’s license renewal or to document continued employment authorization for the employer, a student has the option to request a new I-20 from the school which confirms the extension.
There are some problems that can arise during the cap-gap extension, and I often receive calls about what to do in these situations:
Q: My OPT has expired, my H-1B is still pending and it is after October 1st. Can I keep working under the cap-gap extension?
A: No. The cap-gap extension automatically ends on September 30th. You are no longer eligible to work. However, you are eligible to remain in the United States in a “period of authorized stay” based on the pending H-1B petition. Tip: we are hopeful that premium processing will be restored in early October. If your H-1B is still pending at that time, you may want to consider upgrading to premium processing so that it can be approved as quickly as possible to minimize the amount of time you can’t work.
Q: My H-1B did not request a change of status, it is for consular processing. Am I eligible for the cap-gap extension?
A: No. The cap-gap extension is only for those who have requested a change of status from F-1 to H-1B on the I-129 petition.
Q: My H-1B has been denied before October 1st and my OPT is already expired. Now what?
A: The 60-day grace period begins from the date of denial. During this time, you must stop working. You can make arrangements to leave the country, re-enroll in school for a new program, or look into any other visa options that may be available to you. Please note that if your H-1B has been denied, your record may have been terminated in SEVIS, making it difficult to enroll into a new program of study. This has been a noted technical error. You should check with a qualified immigration attorney regarding your options in this situation. Tip: if your employer files an appeal or an MTR for the H-1B denial, it does not keep you in status and does not authorize you to work. You should check with a qualified immigration attorney regarding your options in this situation.
Q: My H-1B is approved, my OPT has expired, and I want to change jobs before October 1st. Can I?
A: Timing is everything in this situation and things can easily go wrong. Your new employer would need to file a new H-1B petition requesting a change of status from F-1 to H-1B. You would not be subject to the quota because you were already counted when the first H-1B petition was approved. However, if the first employer withdraws the approved H-1B before the second one is approved, there can be a problem. Also, if you are looking to make a change too close to October 1st, there can be issues. You should check with a qualified immigration attorney regarding your options in this situation.
Q: My H-1B is approved, my OPT has expired, and I want to travel before October 1st. Can I come back on my OPT?
A: No. The cap-gap extension is not available for a person who exits the country. Travel is not recommended. But if it is unavoidable, you need to stay outside the country until October 1st, apply for a new H-1B visa stamp when your H-1B is approved, and then can return to the U.S. in H-1B status to start working again.
Q: My H-1B was still pending after October 1st, my cap gap OPT is now expired, and now my H-1B has been denied. Now what?
A: The 60-day grace period began from October 1st when the cap gap ended. If your H-1B is denied between October 1st and November 30th, you should still be in your grace period at the time of denial. You can therefore make arrangements to leave the country, re-enroll in school for a new program, or look into any other visa options that may be available to you during the grace period. Please note that if your H-1B has been denied, your record may have been terminated in SEVIS, making it difficult to enroll into a new program of study. This has been a noted technical error. You should check with a qualified immigration attorney regarding your options in this situation. Tip: if your employer files an appeal or an MTR for the H-1B denial, it does not keep you in status and does not authorize you to work. You should check with a qualified immigration attorney regarding your options in this situation. If the denial occurs after your grace period ends (ie after November 30th), you may be out of status from the date of denial. This may require you to leave the U.S. and reenter using a new I-20 with a new SEVIS number if you intend to regain F-1 status for a new program of study.
Q: My H-1B is still pending after October 1st and my cap gap OPT is already expired. Is there any action I should take before November 30th if there is a chance of H-1B denial?
A: The 60-day grace period began from October 1st and continues until November 30th if the H-1B remains pending . If you are concerned that your H-1B petition may be denied, you may want to consider requesting a new I-20 to continue your studies before November 30th. This would not have any impact on the pending H-1B, but would save you some trouble in the event your H-1B does end up getting denied after November 30th because you would remain in F-1 status.
Q: My H-1B is still pending after October 1st and my cap gap OPT is already expired. What happens if I decide to leave the United States now?
A: There are two parts to every H-1B petition: 1) the petition itself where the employer proves that he job offer is a specialty occupation and you are qualified for the job, and 2) the request related to your status, such as a change of status, extension of status, or consular processing. If you leave the United States while a change of status request is pending, the change of status portion of the petition will be denied automatically for abandonment. The petition itself will continue to be adjudicated as normal. If the petition is ultimately approved, you would then apply for an H-1B visa stamp at the consulate and then return to the U.S. in H-1B status to begin work again.
What other scenarios have come up during the cap-gap extension? Leave a comment!