Cap-Gap: Automatic extension of work eligibility

June 10, 2020
×Close
Current regulations allow certain students with a pending or approved cap-subject H-1B petition 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 were F-1 status not extended for qualifying students.     Change of Status to be requested to qualify for cap-gap.   Cap-subject H-1B petitions that are timely filed for an eligible F-1 student that request a change of status to H-1B on Oct. 1 qualify for a cap-gap extension. Petitions requesting a status change via consular processing do not qualify for cap-gap relief.   Receipt of an H-1B Registration Selection Notice does not qualify an F-1 student for a cap-gap extension.   Receipt of an H-1B Registration Selection Notice does not qualify an F-1 student for a cap-gap extension. Federal regulations stipulate that an F-1 student may receive an extension of their authorized period-of-stay or employment authorization if the student is a beneficiary of a filed H1B petition seeking a change of status with a start date of Oct. 1. Employers who receive an H1B Registration Notice have 90 days to file a Form I-129, “Petition for Nonimmigrant Worker,” requesting a change of status to H-1B on behalf of the worker. An F-1 student can avail themselves of the cap-gap extension only after the employer files the petition.   Automatic Extension of OPT for cap-gap students (updated cap-gap I-20 is not required to continue working).     Once the petitioner timely files a request to change status to H-1B on Oct. 1, the automatic cap-gap extension will begin. If the student’s H-1B petition is approved (or selected and approved if the registration requirement is suspended), the student’s cap-gap extension of status will continue through Sept. 30.   The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new Employment Authorization Document (EAD) to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, issued to the student by their Designated School Official (DSO). This document serves as proof of continued employment authorization.     If a student chooses to obtain an updated Form I-20, they should provide their DSO with evidence of a timely-filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an updated Form I-20, showing an extension until June 1.     The student should return to their DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, indicating that the petition was filed and accepted. The Form I-797 must have a valid receipt number. The student’s DSO will issue another updated Form I-20, showing an extension until Oct. 1. In such situations, the student can continue to work while the update to their Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.
Upcoming Webinars
VIEW ALL

Related News

VIEW ALL
Processing Change for Certain Form I-730 Petitions

On January 12, 2018, USCIS changed the processing location for certain Form I-730, Refugee/Asylee Relative Petition, filings. Previously the Service Center Operations Directorate processed these filings. Now, the International Adjudications Support Branch (IASB) in the Refugee, Asylum, and International Operations Directorate will process the petitions filed by individuals who were admitted to the United States […]

USCIS Announces Countries Eligible for the H-2A and H-2B Visa Programs

USCIS and the Department of Homeland Security (DHS), in consultation with the Department of State, have published the list of countries whose nationals are eligible to receive H-2A and H‑2B visas in 2018 The notice listing the eligible countries was published on Jan. 18, 2018, in the Federal Register. For 2018, Secretary of Homeland Security […]

Texas Service Center to Begin Processing Form I-129 for L Visas

On February 12, 2018, the Texas Service Center (TSC) will begin processing certain Form I-129, Petition for a Nonimmigrant Worker petitions for L nonimmigrant classification, also known as L visas. The TSC will share this workload with the California Service Center to balance workloads and to provide flexibility as USCIS works towards improving processing times […]