H-1B Cap-Gap Extension

Some F-1 students may be eligible for an extension of their OPT and F-1 status under “cap-gap” if they are the beneficiary of a properly filed H-1B petition. The number of people who can obtain H-1B status is regulated by a numerical limit, or “cap”, each fiscal year.

April 1 marks the opening of the H-1B cap filing season, when USCIS begins accepting H-1B petitions for the coming federal fiscal year. The federal fiscal year runs from October 1 to September 30.

NOTE: Institutions of higher education or their affiliated or related nonprofit entities, as well as nonprofit research and government research organizations, are exempt from the H-1B cap. Cap-exempt employers may plan in advance to avoid any gap between OPT and the H-1B status begin date. Since they are exempt from the cap, the information below does not apply.

If a person's H-1B is subject to the cap, and if that person's OPT EAD expires before September 30, the time in between the EAD expiration and October 1 is called the “cap-gap.”

You may be entitled to a “cap-gap” extension of F-1 status and employment eligibility if you meet all of the following criteria:

  1. You have properly maintained F-1 status
  2. Your employer is subject to the H-1B cap
  3. Your employer properly filed an H-1B petition (not only registered for the H-1B lottery) for “Change of Status” (not “Consular Notification”) on or after April 1
  4. Your EAD expires between April 1 and September 30
  5. The H-1B petition was filed before your EAD expired

NOTE: If conditions “a” through “d” above are true but the H-1B petition was filed in the 60-day grace period following the end of your OPT, you are not eligible for the “cap-gap” extension of employment eligibility. You may still be eligible to remain in the United States until the H-1B petition is approved. Consult your employer’s immigration attorney for information about this scenario.

 

Additional information can be found on the IC website at: Cap-Gap Relief Links to an external site.