H-1B Cap Gap Extension

USCIS Reaches Fiscal Year 2016 H-1B Cap (April 7, 2015)

About the "Cap Gap"

H-1B is a work visa that is sponsored by an employer. Students commonly transition from Optional Practical Training (OPT) authorization, part of F-1 status, to H-1B status. There are a limited number of H-1Bs available each fiscal year, for most employers, and this limit is often called the "H-1B cap."

New H-1Bs become effective each October 1, but the application period for most employers begins six months earlier, April 1. The "cap gap" occurs when a student's F-1 status and/or OPT expire before their approved H-1B begins October 1.

The Cap Gap Extension

The H-1B Cap Gap Extension allows certain students with pending or approved H-1B petitions to remain in the U.S. in F-1 status until the start date of their approved H-1B employment period, even if the OPT authorization and/or F-1 grace period would have otherwise expired before October 1.

SEVP OPT Cap-Gap Policy Guidance, April 23, 2010

Eligibility

You are eligible for the cap gap extension if both:

  • Your employer files an H-1B petition for you, on or after April 1, and requests a change of status to H-1B to begin October 1.
  • You are still within your OPT authorization period, or 60-day grace period following the OPT expiration, when USCIS receives the H-1B petition your employer submitted on your behalf (on or after April 1).

If your OPT authorization is still valid when your employer submits your H-1B petition to U.S. Citizenship and Immigration Services (USCIS), your OPT authorization is extended. You can continue working in F-1 status through the extension date.

If your OPT authorization is expired but you are in your 60-day grace period when your employer submits your H-1B petition to USCIS, your F-1 status is extended. You cannot work but you can remain in the U.S. through the extension date.

Extension Dates

The length of your extension depends on your H-1B petition phase:

  • Filed: If your H-1B petition is properly filed (but not yet receipted or approved), your OPT authorization is extended to June 1. If your OPT authorization already expired but you were in your 60-day grace period at the time of filing, your F-1 status is extended to June 1.
  • Selected for receipting: If your H-1B petition is selected for receipting, your OPT authorization is extended to September 30. If your OPT authorization already expired but you were in your 60-day grace period at the time of filing, your F-1 status is extended to September 30.
  • Approved: If your H-1B petition is approved, your OPT authorization is extended to September 30. If your OPT authorization already expired but you were in your 60-day grace period at the time of filing, your F-1 status is extended to September 30. 

How to Apply

The cap gap extension of F-1 status is automatic. It begins when USCIS receives the H-1B petition your employer submitted on your behalf.

To obtain documentation of your F-1 status extension, email to OISSS the following information:

  1. Include your employment information/history via Form ISSS-165, Request for Data Validation.
  2. State in your email how you would like to receive your new I-20: OISSS mail out via USPS First Class Mail, register and pay for University Express Mailing Services, or authorize a friend to collect it from OISSS.  If we do not receive a preferred method, your documents will be mailed to your residential address via regular first class mail.
  3. Attach proof of your H-1B petition.

If your H-1B petition is:

  • Filed: submit a copy of the petition and FedEx, UPS, or USPS Express/certified mail receipt to your ISSS adviser. (If your regular OPT authorization is valid through June 1, do not request a new I-20 based on H-1B filing only. Wait for the receipt or approval notice.)
  • Selected for receipting: submit a copy of the I-797 Notice of Action (receipt notice) to OISSS.
  • Approved: submit a copy of your approval notice (I-797).

OISSS will print a new I-20 for you that indicates the extension of your F-1 status and (if eligible) extension of your OPT employment authorization. Please allow 5 to 7 business days for OISSS processing. The extension benefit is automatic, so you can continue working (if eligible) and remain in the U.S. while waiting for the new I-20.

Frequently Asked Questions

Q:           Can OISSS check my SEVIS record for H1-B application updates?
A:            Only your employer can provide accurate, official updates regarding your H1-B application. If your initial OPT expires before October 1, please follow the instructions above (in the “How to Apply” section) to request an updated cap gap I-20 from.

Q:           Can the cap gap extension of OPT be extended beyond September 30 if my H-1B petition is still pending?
A:            No, the cap gap extension is only until September 30. If the H-1B petition is pending beyond October 1, you can remain in the U.S. based on the pending change of status petition. However, you must stop working until the H-1B petition is approved.

Q:           Will I receive personal notification of my cap gap extension?
A:            No, you will not receive automatic notification. You must be in close communication with your employer's immigration attorney so you know the status of your H-1B petition. When you are eligible for the cap gap extension, you must contact OISSS if you want documentation of the extension (though it is not required).

Q:           What happens if my H-1B petition is rejected, denied, or revoked?
A:            You will have a 60-day grace period from the date of the notification of the denial, rejection, or revocation, during which time you can make preparations to depart the U.S.

Q:           Can I travel outside the U.S. during a cap gap extension period and return in F-1 status?
A:            OISSS recommend you consult your immigration attorney before traveling internationally during the cap gap extension period.

Q:           Does the 90-day unemployment limit apply during the cap gap extension period?
A:            Yes, the 90-day unemployment limit continues during the cap gap extension period.

Q:           Can I apply for the 17-month OPT extension while I'm within a period of cap gap extension?
A:            Yes, you can apply for the 17-month OPT extension during the cap gap extension of OPT. However, you must ensure your employer requests the withdrawal of the approved or pending H-1B petition in time for USCIS to officially accept the withdrawal prior to October 1--otherwise, your H-1B will begin October 1, which cancels your eligibility for the 17-month OPT extension.

Q:           Are there resources with additional information about the Cap Gap Extension?
A:            U.S. Citizenship and Immigration Services (USCIS) provides thorough Cap Gap information.

This page was last updated on: August 30, 2017