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H-1B Cap Gap Employment

Get more information on the USCIS H-1B season

ATTENTION OPT STUDENTS WITH A PENDING OR APPROVED H-1B PETITION

If you are a student on Post-Completion OPT and your employer is filing for your H-1B work visa this year, you may be eligible to obtain a cap-gap I-20 from the International Students & Scholars Office (ISSO).

If your H-1B visa petition is selected as one of the 85,000 available H-1B visas AND your current Post-Completion OPT or STEM OPT will expire before October 1, you are eligible to receive a cap-gap I-20 from the ISSO. The cap-gap I-20 will effectively extend your F-1 work authorization and authorized stay in the U.S. from the date your current EAD expires to September 30 to allow you to maintain work authorization in the U.S. while you wait for your change of status to H-1B on October 1.

If you are eligible for cap-gap work authorization, but have the ability to file for a STEM Extension of your OPT, ISSO recommends you consult an immigration attorney as to whether applying for your STEM Extension of OPT is necessary. 

Theoretically, a student can apply for a STEM Extension during the cap-gap period, even after the expiry of their OPT. This is risky, however, and may lead to a denial.

*Important to note: check with H-1B attorney on how they are filing your H-1B Petition:

H-1B Change of Status vs. Consular Processing

There are two methods of filing your H-1B petition:

  1. Filing on a so-called “change of status” (“COS”) basis means that your nonimmigrant status is automatically changed to H-1B as of the effective date of your H-1B Approval Notice (typically) on October 1; or
  2. Filing with a request for you to adjust to H-1B status by travel ("Consular Processing")*

*The second option indicates that your status is not automatically changed to H-1B; In order to activate your H-1B status, you would need to apply for the H-1B visa stamp at a U.S. consular post (generally in your home country), and then reenter the U.S. using that H-1B visa stamp. Once your H-1B petition is approved, you may apply for an H-1B visa at a U.S. consular post up to 90 days prior to the start date of your H-1B petition. However, you may not enter the U.S. in H-1B status any earlier than 10 days prior to the start date of your H-1B petition. You should contact ISSO if you and your attorney requested option #2 since SEVIS most likely issued you automatic cap gap status at the time they approved the H-1B petition. This means whether or not you request the Cap Gap I-20 from our office, your EAD status will automatically terminate on October 1.

How to receive the Cap Gap I-20:

  • You must submit the ISSO "Cap-Gap I-20 Request" eForm, found on the Forms & Guides section of the ISSO website.
  • We cannot issue you a cap-gap I-20 until such time that you receive your Form I-797C Receipt Notice (indicating that your H-1B petition has been receipted) AND your SEVIS record accurately reflects that your H-1B petition has been accepted to the H-1B cap. Typically, students’ SEVIS records will note whether they have been accepted or not between late-April and early-May. Please do not check-in with ISSO about the status of your H, or submit the Cap-Gap I-20 Request eform, prior to this as it is unlikely that your SEVIS record will reflect your acceptance to the cap. The ISSO will not review students' SEVIS records to confirm acceptance to the H-1B cap; students MUST submit the Cap-Gap I-20 Request eForm once they have received their H-1B Receipt Notice

  • What to present your employer as proof of cap-gap Employment:
    • You will need to present your cap-gap I-20 to the Human Resources office of your employer. This will allow them to re-verify your Form I-9 as evidence of your ongoing ability to legally work in the U.S. They will copy the cap-gap I-20 for their I-9 files. (You will retain the original cap-gap I-20).
    • You will then be required to present your Human Resources with the H-1B Approval Notice the first week of October, once approved.

Cap Gap Employment Status vs Cap Gap extension with no employment status

  1. If student’s OPT ends after February 1 and files an H-1B petition during their 60-day grace period by April 1:
    • Student can remain in the US until October 1, but is not permitted to work.
    • The Cap Gap I-20 will not extend the OPT employment date, but will have a statement explaining that F-1 status has been extended until October 1 with no work authorization.
    • If student chooses to leave the U.S., they must wait outside of the US to re-enter in H-1B status.
    • Student should also inform their H-1B attorney of their intended departure so that H-1B petition can be adjusted accordingly.
  2. If student’s Post OPT grace period (i.e. 60 days beyond the expiration date of your Employment Authorization Card) ends before April 1
    • Student must return home and await H-1B consular processing.
  3. If student has submitted an H-1B Petition during Cap Gap and then decides to apply for STEM Extension:
    • Student will need to ask their employer to submit a withdrawal of the approved or pending H-1B petition in time for USCIS to effectively accept the withdrawal prior to October 1.
    • The 90-day limitation on unemployment continues during the Cap Gap Extension

Travel on Cap-Gap

A student with a cap-gap I-20 can travel abroad and seek reentry as an F-1 student so long as:

  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, i.e., October 1), otherwise, they must enter as an H-1B no earlier than 10 days prior to October 1; and
  3. The student is otherwise admissible. This should not be an issue so long as the student has continually maintained their nonimmigrant status and has not broken any immigration or other law

*Whenever traveling on cap-gap ALWAYS consult your immigration attorney to confirm that travel is approved and that you have all necessary materials to depart and reenter the U.S. as planned.

Read the General H-1B Information and Updates here: