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Cap-Gap Extension while H-1B Petition is pending

Cap-Gap Extension

The term “cap-gap” refers to the period between the time a nonimmigrant's F-1 student status would ordinarily end and their H-1B status begins. F-1 students who are beneficiaries of H-1B petitions may be eligible for Cap-Gap Extension if the H-1B status is set to begin on October 1.

Example of Cap-Gap Extension:

  • OPT Employment Authorization ends on April 30.
  • Employer files an H-1B petition on behalf of the F-1 student on April 1.
  • H-1B status is set to begin on October 1.
  • There is an employment authorization gap between April 30 and October 1.

Under the Cap-Gap Extension rule, an F-1 student is authorized to work during this employment authorization gap period (May 1 through September 30 in the above example). 

 

There are two types of cap-gap extensions:

  • Extensions of F-1 status only (without OPT): If a student is in F-1 status when an employer files an H-1B petition with an October 1 start date, but the student is not currently participating in OPT, the student will receive a cap-gap extension of the F-1 status but will not be authorized to work until USCIS approves the petition and the H-1B status begins on Oct. 1.
  • Extensions of F-1 status and OPT: If a student is in F-1 status on OPT when an employer files an H-1B petition with an October 1 start date, the student will receive an automatic cap-gap extension of both the F-1 student status and the authorized period of post-completion OPT. If USCIS selects the student's H-1B petition and it remains pending or is approved, the student will remain authorized to work as an F-1 student with OPT through Sept. 30.

 

Cap-Gap Automatic Extension Based on Timely Requests to Change Status

For an eligible F-1 student to receive an automatic EAD extension, an Employer must:

  • Timely file a petition to change the student's status to H-1B; and
  • State the student's employment start date is October 1 of the year the H-1B petition is filed.

 

What does Timely Filed Mean?

Timely filed means an Employer submitted the H-1B petition (indicating change of status rather than consular processing) during the acceptance period while the student's authorized F-1 duration of status admission was still in effect. This includes any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period.

 

Documents for employer that show employment eligibility:

  • F-1 student's expired EAD, and
  • H-1B Receipt Notice - Form I-797C, Notice of Action

This automatic extension ends if the H-1B petition is rejected, denied, revoked, or withdrawn.

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