This information is not legal advice; it is for informational purposes only.
OIS does not process H-1B applications, so students should consult with their employer’s attorney or human resources professional for more details concerning the H-1B process. If the student or employer has any questions regarding the H-1B visa status or application process, please refer to an attorney, human resources professional or www.uscis.gov.
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 as 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 of October 1.
New Lottery System. Beginning in 2020, USCIS introduced a pre-registration system to conduct the H-1B lottery for cap-subject H-1B petitions. In this new system, employers are required to pre-register each employee for whom they intend to file an H1-B petition with USCIS. In 2020, the pre-registration period was March 1, 2020 to March 20, 2020. USCIS stated they hope to conduct the lottery and notify petitioners which of pre-registered employees were selected by March 31, 2020. 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 between April 1 and June 30, 2020. 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. We anticipate that USCIS will adjudicate (decide) most of these cases by October 1. It’s possible that not all petitions will be adjudicated by October 1 and USCIS will continue processing until all petitions are adjudicated.
Previous Lottery System. In previous years, when there was no pre-registration system, cap-subject petitioners had to file complete H1-B petitions for their employees when the filing window opened around April 1 each year. USCIS then conducted the lottery after receiving these complete petitions. USCIS informed petitioners if their petitions were selected or rejected in the lottery by sending a formal receipt notice (if selected) or returning the entire application (if rejected). USCIS then proceeded to process and adjudicate the selected petitions.
Practical implications of the new pre-registration system. The registration window closed for the 2021 fiscal year on March 20, 2020. There are a few different scenarios that could apply to you depending on whether your employer pre-registered you and if so, the results of the lottery. These scenarios are outlined below:
- Assuming you have been pre-registered and selected in the lottery:
- If your employer files* your H-1B petition BEFORE your EAD expiration date AND within the 90-day filing window beginning April 1, your F-1 status and OPT employment authorization will be automatically extended through September 30. This extension is known as “Cap-Gap” extension. Please note: being selected in the pre-registration system does not trigger the Cap-Gap benefit, it is the filing of the H-1B BEFORE the EAD expiration only that will confer the Cap-Gap benefits.
- If your employer files* your H-1B petition during your grace period (i.e. within 60 days from your EAD expiration date) and within the 90-day filing window beginning April 1, only your F-1 status, but not your OPT, will be automatically extended through September 30. This means you will be allowed to stay in the U.S. through September 30, but will not have employment authorization.
- *Important Note: Remember, the petition is considered filed on the date USCIS accepts the petition. When USCIS accepts a petition, it issues a receipt notice with the acceptance or “receipt” date on the notice. This is the date the petition is considered “filed” with USCIS. If your petition is mailed before your EAD expiration date, but the receipt date on the USCIS receipt notice is after your EAD expiration date, you will not be granted an automatic extension of your employment authorization.
- If your cap-subject employer did not pre-register you with USCIS during March 1 – March 20, your employer will not be able to file an H-1B petition for you this year.
- If your cap-subject employer pre-registered you with USCIS during March 1 – March 20, but you were not selected in the lottery, your employer will not be able to file an H-1B petition for you this year. As such, you need to consider alternative ways to maintain your ability to remain and work in the U.S. if you wish to do so.
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 end of a student’s OPT and the 10/1 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 30 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 July 1 and September 30th.
Cap-Gap Benefit. “Cap-gap” is a benefit which provides an automatic extension of F-1 status and OPT employment authorization to bridge this gap for an F-1 student who is the beneficiary of an eligible H-1B petition.
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 10/1 start date.
- “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 10/1 start dates.
- “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 10/1 start date” means the H-1B petition requests that the effective start date of the H-1B is 10/1.
The automatic cap-gap extension continues until 9/30 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 10/1, cap-gap does not continue and the student’s work authorization ends until the H-1B is approved.
It is not recommended that students travel outside the US during a cap-gap extension period. USCIS may consider the student to have abandoned the change of status request, if the student departs the US prior to the change of status effective date.
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 if the H-1B petition is not approved by October 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 October 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 September 30 and close your record on October 1. If your H-1B petition is approved and your change of status becomes effective on October 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 October 1 and/or your change of status does not become effective on October 1, you will 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 October 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 through the OPT Upload Center. 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.
Usually, an OPT student’s record in SEVIS is automatically updated with the cap-gap extension information. However, the update depends on automatic actions that must be taken within the SEVIS system and are not controlled by OIS. With the changes to the filing system in 2020, we are uncertain if SEVIS will still automatically update but if it does, we will issue cap-gap I-20s by request.
- H-1B Receipt Notice
- H-1B Approval Notice
- Letter from Employer or Employer’s Immigration Attorney confirming the H-1B petition meets the cap-gap requirements.
You can find more information about H-1B cap-gap at the USCIS website.