Cap-Gap Automatic Extension for H1B petitions

 

Cap Gap Extension for F-1 Students who are the subject of an H-1B petition:

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the "cap-gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Eligibility for an Extension

H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins on April 3rd, 2017, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the "grace period").

Once a timely filing has been made, requesting a change of status to H-1B on October 1st, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and/or approved, the student’s extension will continue through September 30th. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

 

 

Extension of Status or Extension of Work Authorization with a Timely Filed, Receipted, or Approved H-1B Petition

To extend work authorization for Cap Gap the student’s OPT must expire between April 3rd and September 30th, 2017.

If on April 3rd the student is in the Post completion OPT 60 day grace period, or if the student still is involved in an academic program and the I-20 has not expired, or if the student is within the 60 day grace period after program completion, Cap Gap for F-1 status can be extended but work authorization CANNOT.

Work authorization extensions and extensions of status CANNOT go beyond September 30th, even if the H-1 application is delayed at USCIS or a date other than October 1st is chosen as the start date.

In order to receive a new I-20 the student must submit the following documents in person to ISS, or by emailing a scanned copies of the required documents to intlservices@fdu.edu

H-1 Petition is:

Impact on OPT/Status

Items to Provide ISS staff

Properly filed and OPT, grace period, or academic program is ending before June 1***

OPT (or status) extended  to June 1

Copy of EAD Card

OPT Address and Employer Information Form

Proof  of a recieved H1B petition to USCIS. Proof may come from Post Office/Fed Ex tracking the arrival of the petition to USCIS.

Letter from lawyer indicating a complete petition with a change of status request.

Receipted or Approved

OPT (or status) extended  to September 30th

Copy of EAD Card

OPT Address and Employer Information Form

I-797 Receipt Notice or I-797 Approval Notice

 

***Unless the student’s OPT or grace period is ending before June 1st, there is no need to follow the steps for a “Timely file” Petition. The student should wait for the Receipt Notice and follow the steps for a “Receipted or Approved” Petition.

Denied/Withdrawn Applications: If H-1B is denied or withdrawn, OPT ends 10 days after withdrawal/deny notice date. Students are then given a 60 day grace period to depart the US, file for a change of status, or start a new academic program in order to maintain F-1 status.

Other important details:

  • Students should not travel outside the US during the Cap Gap period
  • The 90 day unemployment rule for OPT still applies
  • You will receive a new I-20 but not a new EAD
  • The process for receiving a new I-20 often requires ISS to be in contact with the government, which can take time.
  • Even though the new I-20 may not be processed immediately, the extension itself is automatic.
  • Cap Gap extensions are possible without OPT. A student may get a Cap Gap extension based on a program completion or 60 day grace period date that either arrives or is after April 3rd.

If you have other questions or concerns, please make an appointment with an advisor by calling 201-692-2743.

Helpful links:

Information for Employers on the Cap-Gap Extension of Optional Practical Training

USCIS Questions and Answers regarding Cap-Gap regulations