What is “Cap Gap” and Are You Eligible?
Qualified F-1 foreign student visa holders who are transitioning to an H-1B work visa may be able to extend their status and work authorization beyond the period initially authorized with a Cap Gap Extension. Since new H-1Bs do not become available each year until October 1st, students whose F-1 status ends between April 1st and September 30th face a potential gap in their ability to stay and/or work legally in the U.S. If approved for a change to H-1B status, the cap gap extension will allow you to:
- stay legally in the country if the petition is filed before the end of your 60-day grace period
- extend work authorization for any approved, post-completion Optional Practical Training (OPT) OR Science, Technology, Engineering, and Mathematics (STEM) extension OPT that extends to or beyond April 1, if the petition is filed before the end of your approved OPT
To be eligible for a cap gap extension:
- your employer must file an H-1B petition with USCIS to change the student’s status to H-1B
- H-1B petition must request an October 1st start date
- petition is filed before the Student Program end date or Post Completion STEM OPT end date OR before your 60-day grace period ends
Once USCIS has received your petition, you are eligible for an automatic cap gap extension through September 30th.
Please note that petitions submitted by cap-exempt employers are not eligible for the cap gap extensions. These include institutions of higher education, nonprofit research organizations, and government research organizations.
If you have any questions or want to learn more, be sure to contact our office to schedule a consultation with one of our attorneys today!