H-1B Cap Gap Regulations
If a student on an F-1 OPT reaches its expiry date and the student has been accepted for an H-1B but there is a gap between the expiry of the F-1 OPT and the commencement of an H-1B, this is referred to as the "Cap-Gap". This gap occurs because a petitioning employer cannot file an H-1B petition more than 6 months before the job commences. Currently, this is April 1st, with the start date being October 1st.
Extensions to cover the cap gap are possible
Certain students who have either approved or pending H-1B petitions may remain in F-1 status throughout the period of the cap-gap. For H-1B petitions that have been filed earlier enough for an eligible F-1 student the potential employee may qualify for an extension to cover the cap-gap.
This means the H-1B petition which should indicate change of status for the applicant and not consular processing must be filed throughout the allotted period for H-1B application which commences on April 1st each year and while the student's F-1 is still current which includes any time period during the academic course, any periods that have been authorized for the completion of Optional Practical Training (OPT), and the sixty day departure preparation time or grace period.
Once a filing has been submitted asking for an alteration in status to H-1B on 1st October the extension of the cap-gap will start and will go on until the H-1B petition approval process has reached completion. Once the student’s H-1B petition has been selected and approved, the extension for the student will continue until September 30th. If the H-1B for the student is unsuccessful the student will only have the approved grace period of 60-days from the receipt of the notice indicating that the student has been unsuccessful or the final date of their program or whichever occurs later, to get ready for and leave the United States.
Who does not qualify for an extension?
F-1 students found not to be eligible for a cap-gap extension, and their authorized period of stay expires before the 1st of October must exit the United States and submit an H-1B visa application at a consular post overseas, and if successful return to the United States under H-1B status.
Proving Continuing Status
To obtain continuing status, a student has to visit their Designated School Official (DSO) showing proof of a filed H-1B petition and indicate a change of status request and not consular processing. The DSO will provide a preliminary cap-gap called an I-20, which will indicate an extension until 1st June.
If the student’s H-1B petition is approved, the student is required to return to the DSO in receipt of a copy of Form I-797 which is the petitioning employer’s Notice of Action, showing the receipt number, proving that the petition has been filed and was accepted. The DSO will then issue the student a new cap-gap I-20, which will show the F-1 status continuation.
The denying of an H-1B Petition
If the USCIS makes the decision to deny, reject, or revoke an H-1B petition which has been filed on a F-1 student’s behalf covered by the automatic extension of status for the cap-gap, the student will be eligible for the normal grace period, which is 60 days before she or he or she must leave the U.S.
For those cases that have been denied H-1B status due to fraud or misrepresentation of facts they will not be eligible for the grace period of 60 days and also if the H-1B status was initially approved but fraudulent activities were discovered at a later the offender will be told to immediately leave the United States.
Traveling in the period of Cap-Gap Extension
A student who has been given a cap-gap extension but decides to undertake travel out of the United States in the period of the cap-gap extension will be unable able come back on F-1 status. The student will have to file an application for a H-1B visa status at a consular office overseas before coming back to the U.S.