As an international student, once you graduate, significant decisions have to happen quickly to make sure you stay in active visa status. With an F-1 visa, you have 60 days after your graduation date to either transfer your visa, start a new study program or leave the country. We discuss many of your options after graduation in our article, Seven Ways An International Student Can Extend Their Stay in the US After Graduation.
If you can obtain a job offer after graduation with a company that will sponsor your H-1B visa, you and your new employer will need to time your visa transfer appropriately to ensure a simple transition from F-1 to H-1B. Because of various USCIS deadlines and schedules, you may have to apply for a cap-gap extension to allow for an extension of your F-1 visa until your H-1B visa can begin. In this article, we’ll explain cap-gap extensions and how you may qualify.
What is an H-1B Cap-Gap Extension?
There is a limit or “cap” to how many people can receive H-1B status every fiscal year beginning on October 1. Employers may not file H-1B visa petitions more than six months in advance of a new employee’s start date. So the earliest they can apply for an H-1B visa for the new fiscal year starting on October 1 is April 1.
This can create a gap between the date that your F-1 student visa expires and when your H-1B visa status begins. For example, If you’re an F-1 student with a graduation date of May 15, your active student visa status will run out on July 15, leaving you with a three-month gap of being out of status until your H-1B begins. The period of being out of status is known as a “cap-gap.”
The cap-gap extension is a regulatory provision made available for eligible F-1 students in their 60 day grace period, or on in an OPT or STEM OPT program and has approved or pending H 1-B change-of-status petitions. This provision allows you to extend your F-1 status if you filed for the extension before the expiration date of your current student visa. H-1B visa petitions that are not subjected to yearly cap limits are ineligible for cap-gap extensions.
What is OPT and STEM OPT?
According to USCIS, “Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). However, all periods of pre-completion OPT will be deducted from the available period of post-completion OPT.”
Nonimmigrant students with degrees in STEM fields such as science, technology, engineering, or math can apply for an additional 12 months for a total of 24 months of post-completion OPT employment authorization; however, the USCIS policy on the cap-gap extension remains the same. Meaning, if you participated in pre-completion OPT or STEM OPT, USCIS deducts that amount of time from your post-completion OPT authorization period. If you have completed six months of OPT before graduation, then after graduation, you are only authorized for six additional months for post-completion OPT or 18 months for STEM OPT.
Nonimmigrant students can apply for pre-completion OPT if they have completed one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to enroll F-1 students. If you are approved for pre or post-completion OPT, you can work up to 20 hours or less while school is in session or full time while school is on break.
How to qualify for the F-1 to H-1B cap-gap extension
To be eligible for the cap-gap extension, your employer must submit Form I-129 Change of Status, and an employment start date of October 1 and the I-129 must have been received by USCIS before your OPT or STEM OPT expires or your 60 day period after your graduation date has ended.
You are eligible for the cap-gap extension if:
- Your employer filed your H-1B change of status petition, and you have proof of receipt by USCIS before your post-completion OPT expiration date
- Your employer filed your H-1B change of status petition, and you have proof of receipt by USCIS after your post-completion OPT expires but during your 60 day grace period on your F-1 visa.
Once USCIS has received your petition, you are eligible for an automatic cap-gap extension through September 30. According to USCIS, “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.”
What is the cap-gap extension timeline?
Once your cap-gap extension ends on September 30, you must stop any work in the OPT or STEM OPT program and begin your 60 days grace period that would have accompanied the end of your F-1 visa stay. You can remain in the United States during this time, but you are not permitted to work. Once the grace period ends on November 29, you will no longer be in active F-1 status but can remain in the United States if you have proof of a pending H-1B petition. Once your petition is approved, your status will now become an active H-1B. Please note that the dates are an example, and your situation may be dependent on when your H-1B petition is filed, your OPT post-completion program timeline, and your F-1 status expiration date.
Other important dates to remember that may affect your cap-gap extension:
- One year of full-time study – The first date you can request a pre-completion OPT program. You may be able to request earlier if by the time your OPT employment begins you will have completed one full academic year
- 90 days before your academic program ends – The earliest date you can submit your request to participate in a post-completion OPT program or for a Form I-765 Employment Authorization Document (EAD)
- The completion date of your academic program – Your pre-completion OPT program must also end on this date. This also begins your 60 day F-1 visa grace period
- Sixty days after the completion date of your academic program – The last date to request entry into a post-completion OPT program. It is also the last day you can request an EAD
- 14 months after the completion of your academic program – The latest possible date that your post-completion OPT program can end
What happens if your H-1B petition is denied while you’re on a cap-gap extension?
If your H-1B petition is denied, you will have 60 days from the date of the notification of rejection to leave the United States, regardless of your cap-gap status. However, if your petition was denied due to a status violation, misrepresentation, or fraud, the 60 day period will not apply, and you will need to leave the country immediately.
How do multiple H-1B petitions affect a cap-gap extension?
As an exchange visitor or nonimmigrant student, your visa status and any information regarding your cap-gap extension are tracked through the Student and Exchange Visitor Information System (SEVIS). While you can have more than one H-1B petition pending approval at the same time, SEVIS cannot record more than one request.
If one of your petitions were denied or revoked, your SEVIS record would be complete, even if another request is approved or pending. Regardless of the status of any other H-1B petitions that render your cap-extension as valid, SEVIS sees you as needing to leave the country. Your designated school official (DSO) may be able to request a correction on your behalf with a copy of your approved or pending H-1B petition receipt.
Is traveling allowed while on a cap-gap extension?
You can travel outside of the United States while on a cap-gap extension if your H-1B petition and request for change of status has been approved and you are reentering into the United States before your H-1B employment begins. The only proof you need for your continuing status is your Form I-20. Please note that the U.S. Customs and Border Protection (CBP) officers always make the final decision in allowing your reentry.
Each situation regarding cap-gap extensions and change-of-status petitions are different and require an understanding of the circumstances and the current laws surrounding them. If you are unsure of your options, reach out to an experienced immigration attorney who can walk you through the best course of action for you.
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