Cap-Gap: Automatic extension of work eligibility

June 10, 2020
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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.

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