H-1B Cap-Gap Extension

An H-1B is a type of employment visa or immigration status for individuals in specialty occupations. A specialty occupation is a position which requires at least a bachelor’s degree (or equivalent) and application of a specialized body of theoretical knowledge. To qualify for an H-1B, the employee must have the required degree or combination of education and experience for the position.

In the context of H-1Bs, there are two types of H-1B employers: those subject to the cap (“cap-subject”) and those exempt from the cap (cap-exempt). Generally, employers in industry are cap-subject and employers in education, government, and non-profit sectors are cap-exempt.

The “cap” refers to the limit that Congress has placed on the number of H-1Bs available each year to cap-subject employers. There is no cap or limitation of the number of H-1Bs cap-exempt employers can request. Currently the cap set by Congress is 85,000 per year of which 20,000 are reserved for employees with a master’s degree or higher from a U.S. institution. Each year on October 1, which is the beginning of the U.S. government’s fiscal year, the new allotment (or “cap”) of H-1Bs becomes available for cap-subject employers. The regulations allow an employer to file for an H-1B 6 months in advance of the requested start date. Since H-1B availability is limited each year and typically more H-1Bs are requested than are available, USCIS conducts a random lottery to select who will receive the newly available H-1Bs. To have a chance at obtaining one of these coveted H-1Bs for their employees, cap-subject employers must file for H-1Bs for their employees around April 1 each year (when the filing period opens) and request a start date any time during the following fiscal year.

Lottery System. USCIS maintains a pre-registration system to conduct the H-1B lottery for cap-subject H-1B petitions. Employers are required to pre-register each employee for whom they intend to file an H1-B petition with USCIS during a designated registration period prior to the cap-filing season. If an employer’s pre-registered employee is selected in the lottery, USCIS will notify the employer and invite the employer to file the H1-B petition for the selected employee during a 90 day filing window (usually beginning April 1). As USCIS receives and processes these petitions, it will send receipt notices, requests for evidence (RFEs), approval notices, and denial notices (if any) directly to petitioners.

Maintaining your F-1 status and employment authorization without H-1B. If your employer did not pre-register you or if your employer pre-registered you but you were not selected by USCIS in the lottery you still have some options to maintain your status and work authorization in the U.S. as outlined below:

• If you are graduating prior to the next pre-registration period: we strongly recommend you apply for post-completion OPT. You can read more about the process to apply for OPT on our Optional Practical Training page. 
• If you are currently participating in your first year of OPT authorization and you are eligible for a STEM extension: we strongly recommend you to apply for a STEM extension prior to your current EAD card expiration date. You can read more about the process to apply for a STEM extension on our STEM OPT Extension page. 
• If you already have STEM OPT and you are in the first year of your authorization period: you can continue to work using your current EAD, and wait for the H1-B lottery to open again next year. 
• If you already have STEM OPT and you are in the second year of your authorization period, you are permitted to work until the expiration of your current EAD card. After your expiration date, you will have a 60 day grace period during which you have the following options (if you have further questions about your options, please email your OIS advisor directly for more information).
  • Depart the U.S.
  • Gain admission to another U.S  institution to continue your studies
  • File a change of status request to a different status. 

The “Gap.” The period of time between the expiration of a student’s OPT and the start date of the cap-subject H-1B petition represents a “gap” during which the student would not normally have continuing immigration status and/or employment authorization. For example, if an F-1 student has an OPT end date of June 15 and their employer has filed an H-1B for the student with a start date of October 1, there would be a gap of continuing immigration status and employment authorization between June 16 and September 30.

Cap-Gap Benefit. “Cap-gap” is a benefit which provides an automatic extension of F-1 status and OPT or STEM OPT employment authorization to bridge this gap for an F-1 student who is the beneficiary of an eligible H-1B petition. The Cap-Gap extension lasts until April 1 of that fiscal year or until the validity start date of the approved H1-B petition, whichever is earlier.

Cap-Gap Eligibility. To be eligible for the cap-gap benefit, the F-1 student must be maintaining their F-1 status and must be the beneficiary of a timely filed cap-subject, change of status H-1B petition which was filed before the expiration of the student’s F-1 status and/or OPT employment authorization and which requests a start date any time in the following fiscal year.

• “Maintaining F-1 status” means complying with the F-1 regulations and reporting requirements (including not exceeding maximum allowable unemployment days while in a period of approved OPT).
• “Timely filed” means the H-1B petition was been filed and received by USCIS during the filing window after being selected by USCIS through their annual lottery process. Please note, with the new registration system, being selected in the pre-registration lottery does NOT confer cap-gap benefits. The petition must still be filed with USCIS during the filing window beginning on April 1 to be considered “timely filed.”
• “Cap-subject” means the student’s employer is a cap-subject employer. If your employer is cap-exempt (e.g. NC State University), you will not be eligible for a cap-gap extension because cap-exempt employers can file for an H-1B with any start date at any time and are not limited to only requesting H-1Bs with start dates in the following fiscal year.
• “Change of status H-1B” means the H-1B is filed requesting a change of status on behalf of the student from F-1 to H-1B. If the petition requests consular processing, it is NOT cap-gap eligible.
• “Before the student’s F-1 status and/or OPT employment authorization expires” means the petition was filed prior to either the OPT end date or the F-1 60 day grace period end date. For example, if the student’s OPT was still active when the H-1B was filed, the student’s F-1 status AND OPT are automatically extended. This means the student may continue to stay and work in the U.S. during the cap-gap period. If the student’s H-1B petition was filed after the OPT expired but before the student’s 60 day grace period after OPT expires, only the F-1 status, but not OPT, is extended. This means that the student will be able to stay in the US, but will not be authorized to work during the cap-gap period.
• “Requests a start date any time in the following fiscal year” means the H-1B petition requests an effective start date of the H-1B any time from October 1 – September 30 the following fiscal year.

The automatic cap-gap extension continues until 4/1 or until the validity start date of the approved petition, whichever is earlier, unless and until the H-1B petition is rejected, revoked, denied etc., in which case the cap-gap extension terminates. The student is given a 60 day grace period (during which they can remain in the U.S. but not work) from the date of the notice of the H-1B visa application being rejected, revoked, denied etc. Students on cap-gap extension are still in F-1 status and therefore required to report any change in name, address, employer status, visa status to OIS. STEM OPT students are still subject to the STEM OPT reporting requirements during the cap-gap extension.

If the H-1B is still pending on 4/1, cap-gap does not continue and the student’s work authorization ends until the H-1B is approved.

Students in their initial 12 months of OPT who have an automatic cap-gap extension and who also are eligible for STEM OPT may apply for the STEM extension either within three months before their OPT EAD expiration date or during the cap-gap period. However, the risk of choosing to apply during the cap-gap period (i.e. after the OPT EAD expiry date) is that if a student’s H-1B petition is rejected, denied, revoked, or withdrawn, the student’s cap-gap extension will automatically terminate and the student will no longer be eligible to apply for the STEM extension.

Many students who are eligible for STEM OPT decide to apply for the STEM extension even if they have a pending H-1B petition and a cap-gap extension. The reason for this is that a pending or approved STEM OPT application ensures uninterrupted employment authorization in case the H-1B petition is not approved by April 1. STEM OPT can also serve as a safety net for students whose H-1B petition gets denied or rejected.

If your H-1B petition was selected for processing, but the end date of your OPT is after April 1, the cap-gap extension will not be applicable. Nevertheless, it is important to know that SEVIS will automatically change your OPT end date to April 1 and may close your record on April 1. If your H-1B petition is approved and your change of status becomes effective on April 1, your SEVIS record should remain closed since you are no longer an F-1 student. However, if your H-1B petition is not approved by April 1 and/or your change of status does not become effective on April 1, you may need to contact OIS to have your SEVIS record re-activated.

An approval of an H-1B petition does not always mean an approval of the change of status. A USCIS Approval Notice I-797A will indicate that your petition and change of status have been approved and include your I-94 record attached at the bottom. If you receive this approval notice, effective April 1 you are no longer in F-1 status and OIS does not need any additional information from you. An Approval Notice I-797B will indicate that your petition has been approved and notification has been sent to the listed consulate. It will not include an I-94 record. In this case, to have your status changed you will need to obtain an H-1B visa at the consulate in your country of residence and re-enter the US with the new visa. A new I-94 record that you will receive at the port of reentry will show your H-1B status. If you receive an Approval Notice I-797B, you will need to submit a copy to OIS. OIS will have your SEVIS record re-activated until your change of status becomes effective through travel and re-entry using an H-1B visa.

To request an I-20 from OIS reflecting the cap-gap extension, students should complete our Cap-Gap I-20 Request in GlobalHome. This request requires the upload of a copy of one of the following documents:

• H-1B Receipt Notice
• H-1B Approval Notice 

You can find more information about H-1B cap-gap at the USCIS website.