H-1B Cap-Gap Extension

The H-1B Cap

The H-1B is a temporary immigration status that is used for individuals in a “specialty occupation.” This immigration status requires the sponsorship of an employer and is often filed by an immigration attorney or Human Resources Department. 

For cap subject employers, the Department of Homeland Security (DHS) allows 65,000 H-1B visas for professionals with a bachelor’s level and higher, and an additional 20,000 are reserved for individuals with a master’s degree or higher. The process of selecting individuals is through a randomized system and is often referred to as the “H-1B lottery.”

Petitioning employers may register potential H-1B employees from March 1 through March 20 each year. After the initial registration period takes place, U.S. Citizenship and Immigration Services (USCIS) will invite selected candidates to submit a full H-1B petition within 90 days. Upon submission, a full review of the petition will take place for eligibility as it relates to a specialty occupation requirement. USCIS will determine at that point if a petition is approved, denied, or if additional information is required in order to make a decision. All H-1B statuses begin on October 1 for cap subject employers.

Cap-Gap

Students commonly transition from Optional Practical Training (OPT) authorization, part of F-1 status, to H-1B status.  The "gap" occurs when a student's F-1 status and/or OPT expires before their approved H-1B begins October 1.

Cap-Gap Extension

The H-1B Cap-Gap Extension allows students with pending or approved H-1B petitions to remain in the U.S. in F-1 status until the start date of their approved H-1B employment period, even if the OPT authorization and/or F-1 grace period would have otherwise expired before October 1. This only applies to F-1 international students whose regular OPT, STEM extension, or status will expire in the few months prior to their October 1st H-1B start and the employer has requested a change of status in the H-1B petition.

 

VIEW A VISUAL REPRESENTATION OF cap-gap TIMELINE

H-1B Cap-Gap Eligibility

You are eligible for the cap-gap extension if:

If your OPT authorization is still valid when your employer submits your H-1B petition to USCIS (after 3/20/2020), your OPT authorization is extended. You can continue working in F-1 status through the extension date.

If your OPT authorization expires prior to March 20, 2020, but you are in your 60-day grace period when your employer submits your H-1B petition to USCIS, your F-1 status is extended. You cannot work but you can remain in the U.S. through the extension date.

How to Apply for Cap-Gap Extension I-20

For the 2020 year, USCIS has implemented a new lottery system. With this new system there will be changes to the SEVIS system, and we are not yet sure when SEVIS will reflect an F-1 OPT student's selection for H-1B adjudication. The ISSO will continue to monitor new developments, and when SEVIS allows us to create a new I-20 reflecting the cap-gap, we will do so.

The cap-gap extension of F-1 status is traditionally automatic. It begins when your employer submits the H-1B petition to USCIS. You still must apply for an I-20 that reflects the cap-gap from the ISSO. 

To obtain documentation of your F-1 status extension, please click on the ISSO Portal button in the sidebar. 

If eligible, an ISSO DSO will process your H-1B cap-gap extension I-20 within 7-10 business days from when the request is submitted. The extension benefit is automatic, so you can continue working, if eligible, and remain in the U.S. while waiting for the new I-20.

Can I Travel Internationally During the “Cap Gap” Period?

After an H-1B petition with Change of Status is filed, consult your employer's immigration attorney or Human Resources Department about all international travel, whether or not your EAD is expired.
If your EAD is expired, you will not be able to re-enter the U.S. in F-1 status. You may consult your employer's attorney about whether and when you may be eligible to re-enter the U.S. in H-1B status.