H-1B Cap Gap Extension

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.

What Does the “Cap” and “Gap” Refer to?

The “Cap” refers to the limit that Congress has placed on the number of H-1B visas available each year. October 1 is the day the annual supply of H-1B numbers become available, so October 1 is the employment start date used by most most cap-subject employers.

The “Gap” refers to an automatic extension of F-1 status and OPT employment authorization for students who are the beneficiary of a timely filed H-1B application for change of status that will be effective October 1st.  The extension is intended to bridge the gap between the student’s last date of OPT and the effective date of the H-1B visa. If the student’s H-1B petition was filed during the student’s grace period (i.e. within 60 days from the OPT end date), only the F-1 status, but not OPT, is extended.

For example, an F-1 student has an OPT end date of June 30. If the student’s cap-subject employer has timely filed an H-1B petition requesting change of status and an employment start date of October 1 (the first day of the following fiscal year) while the student was on active OPT and the petition was selected for processing, the student’s F-1 status and OPT will be automatically extended until October to cover the gap between June 30 and October 1. If the H-1B petition for this student was filed during the student’s 60-day grace period (July 1 – August 29), only the student’s F-1 status will be extended until October, but not the OPT employment authorization. This means that the student will be able to stay in the US, but will not be authorized to work.

If your employer is cap-exempt (e.g. NC State University), you will not be eligible for a cap-gap extension.   

Cap-Gap Eligibility Requirements

In order for students to be eligible to continue working during the cap-gap extension, the H-1B petition must be filed with USCIS while the student is still in the period of authorized OPT. If the H-1B petition is filed while the student is in his or her grace period (e.g. within 60 days from the OPT end date), the student’s F-1 status is extended but not the OPT employment authorization.  That means, that the student would be eligible to remain in the US during the cap-gap extension, but not eligible to engage in employment until the effective date of the H-1B status.

To be eligible for the cap-gap extension:

  • The student’s H-1B petition must:
    • have been filed in a timely manner
    • have a requested effective date of October 1 of the following year
    • have been requested for change of status
  • The student must not have violated the terms or conditions of their F-1 status.

Students whose H-1B petition has been filed by an employer  exempt from the H-1B cap (e.g. non-profit or governmental institutions) are not eligible for the cap-gap extension. Cap-exempt employers may request an effective date any time through the year, such as the last date of the students F-1 status.

The automatic cap-gap extension terminates if the H-1B application is rejected, revoked, denied etc. The student is given a 60 day grace period from the date of the notice of the H-1B visa application being rejected, revoked, denied etc. Students on capap 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.

Traveling during a Cap Gap Extension

It is not recommended that students travel outside the US during a cap-ap 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.

Cap-Gap and STEM OPT Extensions

OPT students who have an automatic cap-gap extension and also are eligible for STEM OPT may apply for the STEM extension either within three months before their OPT EAD expiry 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.

How a Pending H-1B Petition Affects OPT with an End Date After October 1

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 on 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.

How to Request an I-20 Indicating the Cap-Gap Extension

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. Some students and employers may wish to obtain an I-20 from OIS indicating the automatic extension. .

To request an I-20 for the cap-gap extension from OIS, students should submit a copy of their H-1B Receipt Notice through our OPT Upload Center (select “Request new I-20 for cap-gap” as the reason for submission).

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