What is a Cap-Gap OPT Extension?
A cap-gap extension is a regulatory provision which extends an eligible F-1 student's status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to remain in the US during the "gap." The cap-gap extension is available to students who, as of April 1st were either on approved OPT or in the 60 day grace period and have a pending or approved change-of-status October 1st H-1B petition with the USCIS that was filed by their employer prior to the expiration of their OPT. You may be eligible for one of two cap-gap extension benefits:
- If the employer filed your H-1B (change-of-status) petition and it is received by USCIS prior to your post-completion OPT expiration date, you qualify for an extension of your OPT employment authorization.
- If the employer filed your H-1B (change-of-status) petition and it is received by USCIS after your post-completion OPT expires but during your 60 day grace period following OPT, your F-1 status and permission to remain in the US are extended but you are not eligible to work.
Request a Cap Gap I-20
Students who apply for Cap Gap have to meet the following conditions:
1. OPT is expiring after April 1
2. the employer has a timely filed H-1B application
3. the student has a copy of the H-1B I-797C Notice of Action (Receipt Notice)
To request a Cap Gap I-20, go to the F-1 and J-1 Forms and Requests page and enter the key word "Cap Gap" in the search box (right above table with forms and checklist)
Example 1:
Walter is a PhD student who defended his dissertation in March 2018 (program completion date for thesis/dissertation students) and was approved for post-completion OPT from 3/20/18 to 3/19/19. Walter was hired by a for-profit company, who filed an H-1B application for him on April 1, 2019 with USCIS. His H-1B application was chosen and receipted by USCIS and Walter contacts his DSO for a Cap Gap I-20. The DSO explains that, while Walter is eligible to stay in the U.S. while the H-1B is pending, his work authorization expired on 3/18/2019.
Takeaway: The H-1B application was filed by his employer with USCIS during the grace period, therefore he is not eligible for the Cap Gap I-20. Walter will have to wait until the H-1B is approved and resume work on October 1, 2019.
Example 2:
Esther completed her BS Accounting degree and was approved for post-completion OPT for the time period of 6/1/2018 to 5/31/2019. Esther went to work for a private accounting firm as a Junior Accountant. On April 1, 2019, Esther’s employer filed for an H-1B with USCIS and the application was chosen by USCIS and receipted, with a case number migrating to her SEVIS Record. Esther contacts her school for a Cap Gap I-20. The DSO checks her SEVIS record and the OPT end date has been automatically extended to September 30. The DSO prints and signs the I-20 and gives it to Esther. She is eligible to continue working on OPT until her H-1B begins on October 1.
Takeaway: If H-1B is receipted and accepted before the OPT end date, then the OPT end date will be extended to 9/30.
Example 3:
Kwesi graduated with a MS in Electrical Engineering and was approved for OPT to begin on 7/15/2018 and end on 7/14/2019. Kwesi’s employer, a private engineering firm, filed for H-1B with USCIS on April 1, 2019 and the application was chosen and receipted in June 2019. His new OPT end date was automatically extended to September 30 in his SEVIS record. Kwesi is worried that the H-1B may not get approved and wants to also apply for STEM OPT. The DSO will now have to issue a STEM OPT I-20 recommendation beginning 10/1/2019 -10/1/2021 and attach a letter for him to send to USCIS with his STEM OPT application of 7/15/2019 to 7/15/2021.
Takeaway: You can apply for both H-1B and STEM but due to current SEVIS functionality it could require a DSO letter requesting corrected dates for your STEM OPT application.
Example 4:
Marlena graduated with a BA in Communications and was hired by the Washington Redskins football team as an event coordinator. Her OPT time period is 6/15/2018 to 6/14/2019. On April 1, 2019, the organization applies for H-1B for Marlena. The case is chosen by USCIS and receipted. Marlena receives a new I-20 from her DSO with an end date of 9/30/2019. On August 30, 2019 the H-1B is denied. Marlena must stop working and her 60 day grace period will begin on the date of the denial letter. Marlena must then 1) begin a new program in F-1 status, 2) file for a change to another visa status (if possible), or 3) leave the U.S. within her 60 day grace period (October 29, 2019).
Takeaway: Cap Gap Extension can be initiated with an accepted H-1B application, but if the H-1B is denied, it will end prior to 9/30. Cases in which an H-1B Denial is issued by USCIS can cause functionality in the SEVIS Record to revert dates back to the original OPT end dates. In some cases, as student record may end up being Completed in SEVIS if the denial is past the original 60 day grace period. In these cases, students will need to meet with the DSO in order to determine next steps, or see an immigration attorney as soon as possible.
What happens if my H-1B is denied after applying for the Cap-Gap Extension?
If the student's H-1B is not selected, the student will have the standard 60-day grace period from the date of the rejection notice to depart the US, transfer the I-20 to a new program, or apply for a change of status. However, if a denial is based on a discovered status violation, no such grace period exists and the student must leave the US immediately.
Can I travel during a Cap-Gap Extension period and still return with my OPT I-20 and EAD?
- you have a valid F-1 visa at the time of re-entry
- you have an I-20 that reflects the cap-gap benefit and has a travel signature (no older than 6 months)
- the H1-B petition filed on your behalf has been approved BEFORE you travel
IMPORTANT: Per Department of Homeland Security policy, an applicant who departs to U.S while a change of status application is pending is considered to have abondoned the application.
What if my OPT expires before April 1st? Will the preliminary or automatic Cap-Gap Extension extend my OPT?
Although your F-1 status would be extended if you are in your 60-day grace period when the petition is filed, your OPT employment authorization period has expired, and the cap-gap does not serve to reinstate or retroactively grant employment authorization. Your legal status to remain in the U.S. in F-1 status is extended, but you are required to stop working until your H-1B goes into effect on October 1st.
What do I do if I am eligible for Cap-Gap and the International Office discovers that the SEVIS system has not been updated by USCIS to reflect my pending H-1B petition?
If OIPS checks your SEVIS record and finds that cap-gap has not automatically been applied, then we will have to request a data fix from the SEVIS Help Desk. In these cases, we will have to submit a copy of your EAD card, your H-1B Receipt Notice or your H-1B Approval Notice.
What if my original OPT expires and my Cap-Gap Extension data fix is still pending with SEVIS Help Desk?
Your post-completion OPT is automatically extended, whether you apply for the cap-gap extension I-20 or not. Therefore, you are allowed to continue working with your employer while the cap-gap extension data fix is pending. Also, keep in mind that the 90-day unemployment rule remains in effect during your automatically extended work authorization.
What If my employer has filed for H-1B and I have a Cap Gap in place, but I want to also apply for STEM OPT and my degree is STEM Eligible?
It is highly encouraged for students to apply for STEM OPT, if eligible, even if the employer has filed for H-1B, as the likelihood of USCIS approval for STEM OPT is much great than USCIS approval for H-1B. Students on Post Completion OPT who have a receipted H-1B application at USCIS will have an OPT end date of September 30th. Functionality in the SEVIS system will only then allow the DSO to recommend STEM OPT with a false start date of October 1st. The DSO should also attach a letter detailing the correct dates for STEM OPT recommendation, i.e. Start Date for STEM = day after post-completion OPT originally ended, End State for STEM =24 months from original post-completion OPT end date.