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Extension Option: Cap Gap

Cap Gap Prevention

If your employer files a timely H-1B petition (requesting a change of status within the US), and requests an employment start date of October 1 of the following fiscal year, you are permitted to continue working and may remain legally in the US in F-1 status until the H-1B petition is rejected, denied or revoked.  If the H-1B petition is approved, your immigration status change will occur on October 1.

The cap-gap work authorization continuation only applies in cases where the H-1B petition is filed before the EAD expires. If the EAD expires before the H-1B petition can be filed, but you are still within the 60-day grace period, you may remain in the US in F-1 status until a decision on the H-1B petition is reached, but may not be employed.

F-2 dependents (spouses and minor children) are eligible to remain in F-2 status during this time as well. Students and employers should note that this permission to remain in the US in F-1 status and continue working under OPT in this particular situation is automatic, pursuant to the new regulation from ICE. 

There is no new application for an Employment Authorization Document (EAD).  Note: This permission applies to all F-1s on OPT whose employers filed a timely H-1B petition for the following fiscal year, regardless of the student’s field of study.

If your employer’s attorney, your local DMV, or similar requests that you provide an updated I-20 that reflects your cap-gap OPT information, please send a copy of your H-1B petition and a short note requesting the updated cap-gap I-20 to your International Student Advisor. You should provide this information approximately 30 days before your OPT EAD expires.

Cap-gap extensions do not provide F-1 students with a new OPT card.  DHS advises that students with an expired OPT card are not eligible to re-enter the US.

If the H-1B petition is rejected, denied or revoked, the OPT cap-gap authorization will end 10 days later, and the student has a 60-day grace period to depart the US, change status or begin a new program (at the same school or by transferring to a new school).

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