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 called 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.
The cap-gap period starts when an F-1 student’s status and employment authorization expires and, unless terminated, ends on October 1, the required start date of the H-1B cap-subject petition filed on their behalf if seeking cap-gap authorization.
Cap-gap occurs because an employer may not file, and USCIS may not accept, a cap-subject H-1B petition submitted more than six months before the date of actual need for the beneficiary’s services or training.
As a result, the earliest date an employer can file an H-1B cap-subject petition is April 1 for the following fiscal year, which starts October 1.
If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1, but the beneficiary’s OPT employment authorization may expire before the H-1B start date.
Cap-subject H-1B petitions that are timely filed for an eligible F-1 student who requests a change of status to H-1B on October 1 qualify for a cap-gap extension.
Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the applicable H-1B filing period, which begins April 1 and while the student’s authorized F-1 duration of status (D/S) admission was still in effect (including any period during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period commonly known as the “grace period”).
A cap-subject H-1B petition will not be considered to be properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year unless the registration requirement is suspended.
Once the petitioner timely files a request to change status to H-1B on October 1, the automatic cap-gap extension will begin. The cap-gap extension of OPT is automatic for eligible students. A student does not apply for the extension or receive a new Employment Authorization Document (EAD) to cover the additional time.
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 September 30.
The cap-gap extension of status will automatically terminate if the student’s H-1B petition is denied, withdrawn, revoked, rejected, or is not selected, or if the change of status request is denied or withdrawn even if the H-1B petition is approved for consular processing.
The student will have the standard 60-day grace period from the date the extension of status terminated or their program end date, whichever is later, to depart the United States (however, the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied or revoked due to a status violation, misrepresentation, or fraud).
Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.
F-1 students who have entered the 60-day grace period are not authorized to work. If an H 1B cap-subject petition is properly filed for a student who has entered the 60-day grace period, the student will receive the automatic extension of his or her F-1 status, but will not be authorized to work since the student was not authorized to work at the time H-1B petition was filed.
F-1 students who do not qualify for a cap-gap extension and whose periods of authorized stay expire before October 1 are required to leave the United States. They then need to apply for an H-1B visa at a consular post abroad, if applicable, and seek to be readmitted into the United States in H-1B status for the dates reflected on the approved H-1B petition.