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H-1B Cap Gap Employment

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 need 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 from the date your current EAD expires to September 30th 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 a STEM extension of your OPT, ISSO advises that you apply EVEN IF you are eligible for cap-gap. Doing so ensures that you will maintain status at least through your eventually approved STEM OPT period should your H petition be denied or withdrawn before October 1.

*Important to note: check with H-1B attorney on how they’re completing form I-129 on below

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, meaning that your nonimmigrant status is automatically changed to an H-1B worker as of the effective date of your H-1B approval notice on October 1 or
  2. filing with a request for you to adjust to H-1B by travel*

*The second option indicates that your status is not automatically changed to H-1B, and 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 more 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.

What to present ISSO to receive the Cap Gap I-20

  • You must contact the ISSO to obtain your cap-gap I-20 before the expiration of your current EAD. ISSO will need to see either a copy of your Form I-797 H-1B Petition Receipt Notice or the Form I-797 H-1B Petition Approval Notice.
  • We cannot issue you a cap-gap I-20 until such time that your SEVIS record accurately reflects that your H-1B petition has been accepted to the H-1B 85,000 visa cap. Typically, students’ SEVIS records will note whether they’ve been accepted or not between Late-April and early-May. Please do not check-in with ISSO about the status of your H prior to this, as it is unlikely that your SEVIS record will reflect your acceptance to the cap.
  • What to present your employer as proof of Cap Gap Employment
  • You will need to present your cap-gap I-20 with the Human Resources 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 US. 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 the first week of October.

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, 2016, 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 this General H-1B Information and Updates (pdf). 

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