Understanding OPT Cap-Gap

The H-1B visa allows employers to temporarily employ a foreign national, who possesses at least a bachelor’s degree, in a specialty occupation. The H-1B employment period generally begins on October 1, the start of the federal government’s fiscal year.  There are special rules that act to automatically extend the US employment eligibility of qualified F-1 foreign student visa holders beyond the period initially authorized. The rule that relates to F-1 visa holders seeking to change to H-1B work visa status is referred to as “cap-gap.” This is because it is intended to fill the gap between the date the optional practical training (OPT) period would otherwise expire and the date that the new H-1B employment authorization starts. The 60-day grace period may not be enough to cover the “cap-gap” period until H-1B status begins. However, USCIS offers an OPT cap-gap extension if three conditions are met: An employer timely files a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting a change of the student’s status to H-1B. (Exception: Petitions requesting consular processing which do not qualify);  The H-1B petition asks for an October 1 start date; and  The student’s status, including any applicable grace period, ends between April and September 30. Situations […]
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F-1 ‘Cap-Gap’ Status and Work Authorization Only Valid Through Sept. 30, 2018

F-1 students who have an H-1B petition that remains pending after October 1, 2018, risk accruing unlawful presence if they continue to work on or after October 1, 2018 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through September 30, 2018. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS has not been able to adjudicate H-1B change of status petitions for all F-1 students by October 1, 2018.  USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1, to have his or her F-1 status and any current employment authorization extended through September 30. This is referred to as “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. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30, with October 1 being the requested start date of their H-1B employment, unless otherwise terminated or the […]
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Traveling While in the H-1B Cap-Gap Period

As the H-1B  season is fully underway and U.S. Citizenship and Immigration Services (USCIS) is currently adjudicating petitions that were accepted in the lottery, many F-1 students are in the period known as “H-1B cap-gap.”  The cap-gap provisions allow an F-1 student who filed an H-1B petition and that was accepted in the lottery process to automatically extend their student status and employment authorization until October 1, 2013. However, during this cap-gap period travel is not advised.  While the USCIS guidelines are not completely clear, it is regular practice that an F-1 student will lose the cap-gap benefits if they travel outside the U.S. during this period.  This means that if an F-1 student travels outside the U.S. (including Canada and Mexico), the student would not be able to return to the U.S. in valid F-1 status and must wait until they can be admitted in their new H-1B status.  If an individual in F-1 status leaves the U.S. during this cap-gap period and their H-1B petition is approved, that person will be allowed to enter only 10 days prior to the October 1st start date in valid H-1B status.  However, they will not be allowed to begin working until October 1st. […]
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