H-1b and cap-gap extension

Current regulations allow students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the "cap-gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status. Students who qualify for this cap-gap extension are automatically awarded this extension.

You are eligible for a cap-gap extension IF:

1. Your H-1B petition was timely filed by your employer. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1 and the student's authorized F-1 duration of status (D/S)
   admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the "grace period").
   2. Your employer requested a change of status to H-1B on October 1

Once a timely filing requesting a change of status to H-1B on October 1 has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected,
the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during
the cap-gap extension period for status updates on the H-1B petition processing.

Please note: F-1 students who have filed during the 60-day grace period are not employmentauthorized. If an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will
not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States. They can apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

The 60-day grace period does not apply to an F-1 student whose change of status request is denied due to the discovery of a status violation, misrepresentation, or fraud. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States
immediately.

If the students' OPT end dates are shortened to September 30, even though their H-1B employment
would not begin until a later date, the student s

No. Only your employer can provide accurate, official updates regarding your H-1B application

No, the cap-gap extension is only until September 30. If the H-1B petition is still pending beyond October 1, you may remain in the US based on pending change of status petition; however, you must cease all employment until the H-1B is approved. 

A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

The 90-day (or 150-day for STEM OPT) limitation on unemployment during the post-completion OPT authorization continues during the cap-gap extension. Once all 90 (or 150) unemployment days are used, the student MUST be employed or risk termination of their OPT. 

F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree,
may apply for a 24-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at
www.ice.gov/sevis.

Students who are eligible for a STEM OPT extension must submit their application to USCIS prior to the end date of their approved OPT period listed on their EAD card. They may not apply for STEM OPT during the cap gap period if their OPT authorization has ended. 

Yes, you may apply for the OPT STEM extension as long as you are in a valid period of OPT (your OPT end date on your EAD card cannot have already passed). Should you choose to continue on your 24- month extension rather that H-1B, you must ensure your employer requests the withdrawal of your H-1B petition prior to October 1, otherwise, your H-1B will begin October 1, which will cancel your eligibility for
the 24-month extension. 

If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, the student can retrieve any unused OPT. The student will remain in student status and can continue working on OPT using the unexpired EAD until the EAD card expires The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date. This will prevent the student from changing to H-1B status. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved, before resuming employment.

The student can continue working with his or her approved EAD while the data fix in SEVIS is pending if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

• the student finds employment appropriate to his or her OPT;
• the period of OPT is unexpired; and
• the DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may
not work or attend classes until the reinstatement is approved.

If the H-1B revocation occurs before October 1, the student may continue working past October 1 while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to stop working before October 1, apply for reinstatement, and wait until the reinstatement request is approved before resuming
employment.

: If the H-1B revocation occurs before the H-1B change of status effectivedate, the student is still in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in
valid F-1 status and will therefore either need to apply for reinstatement or depart the United States