The H-1B visa process is a long and winding road with many rules and conditions with which petitioners should be familiar. One of these is the H-1B Cap, which we discussed in detail here. In this article, we’re going to lay out the details of the OPT Cap-Gap extension and how it can apply to your case.
As the preferred career accelerator for STEM students, HiCounselor likes to help keep students informed about their options. We’ve also got a very helpful search tool that not only lists companies that sponsor H-1B visas but also details recruiter information to make it easier for you to connect with them. If you’d like to have some help in this process, get in touch with us to see how we can make things easier for you!
Sometimes there can be a gap between the end of a student’s F-1 OPT or STEM OPT work authorization and the start of their H-1B worker status (1st of October). The Cap-Gap extension was introduced as a regulatory provision to allow the student to stay in the US during this gap period instead of having to leave and then come back.
This OPT Cap-Gap extension can be granted to those students who are on approved F-1 OPT or STEM OPT or in the 60-day grace period waiting for the change of status of their H-1B petition. To qualify for an F-1 OPT Cap-Gap extension, your employer should submit Form I-129 requesting a change of status and an employment start date of October 1 within the 60-day grace period or before the expiration of the OPT Employment Authorization Document (EAD).
You won’t be able to qualify for the Cap-Gap extension if you filed your H-1B visa via consular processing. Ask your employer if your petition will be filed as ‘change of status’ or via ‘consular processing’. For the first, if applied before the OPT expiration date, you can qualify for an extension of the OPT work authorization. If the petition was filed after OPT expiration date but within the 60-day grace period, you can get an extension on the F1 status but don’t have permission to work.
If your employer filed your H-1B petition and got a receipt from the USCIS, you can get an automatic Cap-Gap extension I-20 till the 30th of September. To avail this, you should request for the H-1B Cap-Gap extension I-20 request on SEVIS. You’ll have to submit your 12-month EAD or STEM EAD card as well as a copy of your I-797 receipt or approval notice from USCIS.
If your employer filed the H-1B petition but has yet to receive the receipt from USCIS, you won’t be able to apply for the OPT Cap-Gap extension. SEVIS only grants extensions to those applications that have been selected for processing and receipted.
In case your employer files your H-1B petition after your OPT EAD has expired, if you are within your 60-day grace period, the Cap-Gap extension allows your F-1 status to be extended but doesn’t give you any employment authorization. This means you can stay in the US, but you have to stop working until you get your H-1B worker status.
It’s advisable not to travel outside the US while your H-1B visa process is underway. However, if you have to travel abroad as an F-1 student, you can seek re-entry into the country during a Cap-Gap period if your H-1B petition and request for change of status have been approved, or if you’re re-entering the country before your H-1B employment begins. You can also re-enter if your I-20 shows the Cap-Gap extension and has a travel signature no older than 6 months.
Do keep in mind that if an F-1 student travels abroad while their H-1B visa is being processed and the change of status request is still pending, the petition will be considered abandoned. Also note that despite fulfilling the above-mentioned requirements, a US Customs and Border Protection officer gets to make the final call on whether to allow re-entry into the country.
We hope this information has cleared up any confusion you might have had about the OPT Cap-Gap extension. You can keep up with updated information on the USCIS site. If you want to browse employers that sponsor H-1B visas, use HiCounselor’s free search tool here. If you’d like more help in getting your career going, contact us and have a chat with one of our helpful mentors!
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