Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations

ALERT:  Although F-1 nonimmigrant students with degrees in science, technology, engineering, or mathematics (STEM) may apply for a 24-month extension of their post-completion OPT employment authorization, our policies regarding the cap-gap extension remain the same. An F-1 student who is the beneficiary of an H-1B petition and request for change of status that is filed on time may have his or her F-1 status and any current employment authorization extended until the first day of the new fiscal year.

The “cap-gap” period starts when an F-1 student’s status and work authorization expires and, unless terminated, ends on October 1, the required start date of their approved H-1B employment

Cap-gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that 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.

Cap-Gap Extensions

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as 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 if F-1 status is not extended for qualifying students.

Eligibility for an Extension

H-1B petitions that are timely filed for an eligible F-1 student that request 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 H-1B acceptance period which begins April 1 while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time 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").

Once the petitioner timely files a request to change status to H-1B on October 1, the automatic cap-gap extension will begin. If the student’s H-1B petition is selected and approved, the student’s extension of status will continue through September 30. The 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.

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.

Please note: F-1 students who have entered the 60-day grace period are not authorized to work. If an H‑1B cap-subject petition is 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.

Those Not Qualified for an Extension

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 and seek to be readmitted into the United States in H-1B status for the dates reflected on the approved H-1B petition.

Additionally, the cap-gap provision applies only to beneficiaries of cap-subject H-1B petitions, not to beneficiaries of cap-exempt H-1B petitions.

Proof of Continuing Status

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new Employment Authorization Document (EAD) to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, issued to the student by his or her Designated School Official (DSO). This document serves as proof of continued employment authorization.

If a student chooses to obtain an updated Form I-20, the student should go to his or her DSO with evidence of a timely-filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an updated Form I-20, showing an extension until June 1.

If the H-1B petition is selected by USCIS, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, indicating that the petition was filed and accepted. The Form I-797 must have a valid receipt number. The student’s DSO will issue another updated Form I-20, showing an extension until October 1. In such situations, the student can continue to work while the update to his or her Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.

Denied H-1B Petitions

If an H-1B petition filed for an F-1 student with a cap-gap extension is denied, rejected, revoked, or withdrawn, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, revocation, or withdrawal of the petition) to depart the United States.

The 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to a status violation, misrepresentation, or fraud. In such cases, the F-1 student is ineligible for cap-gap extension of status and the 60- day grace period. Similarly, the 60-day grace period and cap-gap extension of status does not apply to an F-1 student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both of these instances, students are required to immediately leave the United States.

Travel during Cap-Gap Extension Period

An F-1 student may generally travel abroad and seek readmission to the United States in F-1 status during a cap-gap period if:

  1. The student’s H-1B petition and request for change of status has been approved;
  2. The student seeks readmission before his or her H-1B employment begins(normally at the beginning of the fiscal year on October 1); and
  3. The student is otherwise admissible.

Please note that even if a F-1 student meets all of the requirements listed above, a U.S. Customs and Border Protection (CBP) officer always makes the final determination on whether to admit an application for admission after inspecting you at a port-of-entry. Applicants may refer to the DHS Study in the States page for a list of the documents needed to confirm eligibility for F-1 status.

STEM OPT Extensions

F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List (PDF), are employed by employers enrolled in and maintain good standing with E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 24-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on our Optional Practical Training Extension for STEM Students (STEM OPT) page or the STEM OPT Hub.

Students who are eligible for a cap-gap extension of post-completion OPT employment and F-1 status may apply for a STEM OPT extension during the cap-gap extension period.

However, students may not apply for a STEM OPT extension once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day departure grace period.

Unemployment Limits

The law allows you to be unemployed during your OPT period for a limited number of days.

 

If you received…

You may be unemployed

for…

For a total of…

(during the OPT period)

Initial post-completion OPT only

Up to 90 days

90 days

24-month extension

An additional 60 days

150 days

Start Date Issues

If the student’s OPT end date is shortened to September 30 even though their H-1B employment would not begin until a later date, the student should contact their DSO. The DSO may request a data fix in the Student and Exchange Visitor Information System (SEVIS) by contacting the SEVIS helpdesk.

Changes in Employment

  • Laid off or terminated by the H-1B employer: If the student has been approved to change their status to an H-1B nonimmigrant but is laid off/terminated by the H-1B employer before the date they officially obtain H-1B status, the student can retrieve any unused OPT if he or she has an unexpired EAD issued for post-completion OPT. The student will remain in F-1 status and can continue his or her OPT using the unexpired EAD.

The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status goes into effect. This will prevent the student from changing to H-1B status. Once the petition has been revoked or withdrawn, the student must provide his or her DSO with a copy of the USCIS acknowledgement of withdrawal (the notice of revocation). The DSO may then contact the SEVIS helpdesk to request a data fix in SEVIS to prevent the student from being terminated in SEVIS.

If USCIS does not receive the withdrawal request before the date that the student is supposed to change status to an H-1B nonimmigrant, then the student will need to stop working, file Form I-539, Application to Extend/Change Nonimmigrant Status to request F-1 status, and wait until the change of status request is approved before resuming employment.

  • Student finds a new H-1B job: The F-1 student can continue working with his or her approved EAD while the data fix in SEVIS is pending if:
    • The (former) H-1B employer withdrew the H-1B petition on time;
    • The student finds employment appropriate to his or her OPT;
    • The period of OPT is unexpired; and
    • The DSO has requested a data fix in SEVIS.

If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

While Waiting for a Data Fix in SEVIS

  • Working while the data fix is pending: If the employer withdraws the H-1B petition before October 1, the student may continue working past October 1 while the data fix remains pending so long as:
    • The student finds employment appropriate to his or her OPT;
    • The period of OPT is unexpired; and
    • The student has not otherwise violated his or her F-1 status.

If the employer withdraws the H-1B petition on or after October 1, the student will need to stop working immediately, apply for F-1 status, and wait until the change of status request is approved before resuming employment.

  • Maintaining valid F-1 status: If the employer withdraws the H-1B petition before the date that the student officially changes to H-1B status, the student generally will remain in F-1 status while the data fix is pending. The student would have the standard 60-day grace period to depart the United States unless the H-1B petition was revoked because of fraud or violation of status.

If the employer withdraws the H-1B petition after the date that the student officially changes to H-1B status, the student’s status will have been changed from F-1 to H-1B. The student will no longer be in valid F-1 status and will either need to apply for F-1 status or immediately depart the United States.

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