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.
The H-1B Cap Gap is an automatic extension for F-1 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.
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 employers for a cap-subject individual.
The “Gap” refers to the gap in visa status that occurs when the students current F-1 visa status expires before the requested H-1B visa start date. For example, an F-1 student with an OPT end date of May 31 will have grace period of 60 days beyond May 31, until July 30. The gap between July 30 (the last date of 60 day grace period) and October 1 (the effective date of H-1B visa status) is a “cap-gap.”
Usually the Cap Gap Extension occurs automatically after the H-1B application has been filed. The record in SEVIS is automatically updated with 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. If the information is available in the SEVIS system, OIS will be able to issue the Cap Gap Extension I-20.
In order for students to be eligible to continue working during the Cap Gap Extension the extension must be processed while the student is still in the period of authorized OPT. If the Cap Gap is requested while the student is not on authorized OPT the students’ status is extended but not the employment. For example, a student who request the Cap Gap Extension while in their 60 day grace period 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.
See the Eligibility Requirements
- The student’s H-1B application 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 has been filed by an employer not subject to the H-1B Cap (e.g. non-profit or governmental institutions) may not be deemed eligible for the Cap Gap Extension, as determined by USCIS. Employers who are not subject to the H-1B Cap may request an effective date anytime 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 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 revoked, denied etc. Students on Cap Gap Extension are still required to report any change in name, address, employer status, visa status to OIS. Students may use the OPT Validation form to report these events to OIS.
Traveling during a Cap Gap Extension
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.
How to request an I-20 for the H-1B Cap Gap Extension
To request an I-20 for the H-1B Cap Gap Extension from OIS students should e-mail a copy of their H-1B approval notice, receipt notice or a letter from their employer (on letterhead) confirming that the H-1B petition was filed in a timely manner and the date the petition was filed to OIS at email@example.com.