F-1 students who seek to change to H-1B status may be eligible for a cap-gap extension of status and employment authorization through September 30 of the calendar year for which the H-1B petition is being filed, but only if the H-1B status will begin on October 1. 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. If you employ an F-1 nonimmigrant student in OPT and you timely filed an H-1B petition for that student, they may be able to continue working beyond the expiration date on their OPT EAD (Employment Authorization Document, FormI-766) while waiting for the start date of an approved or pending H-1B petition.
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 you file 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 their F-1 status, but will not be authorized to work until USCIS approves the H-1B petition and the H-1B status begins on October 1.
- Extensions of F-1 status and OPT.
If a student is in F-1 status when you file an H-1B petition with an October 1 start date and is currently participating in post-completion OPT, they will receive an automatic cap-gap extension of both their F-1 student status and their authorized period of post-completion OPT. If the H-1B petition is selected and remains pending or is approved, the student will remain authorized to work as an F-1 student with OPT through September 30.
The following documents establish identity and employment authorization for Form I-9 purposes for students who have had their status and employment authorization extended through cap-gap:
- Expired EAD; and,
- Form I-20 endorsed by the student’s DSO recommending the cap-gap extension.
These documents are acceptable through September 30 of the year in which the employer filed the H-1B petition unless the H-1B petition is rejected, not selected, denied, revoked or withdrawn before October 1.
To verify employment authorization in Section 2 or conduct reverification in Section 3 during the cap-gap period, the employer should record:
- EAD document title;
- EAD document number;
- Date the EAD expired in the expiration date space; and,
- “CAP-GAP” in the Additional Information field.