h-1b cap-gap

Duration of Status (D/S) and work authorization will be extended for a student on OPT who has a timely filed H-1B petition with an employment start date of October 1 of the following fiscal year. This applies to all students on OPT, not just students eligible for the 17-month OPT extension. The extension of duration of status and work authorization would automatically terminate upon the rejection, denial or revocation of the H-1B petition that was filed on the student's behalf.

What is an H-1B?

The H‑1B status permits temporary employment (up to 6 years) in the U.S. for people who have a minimum of a Bachelor’s degree in the same or a related field as the job offered. The position offered must require professional-level skills and pay salaries at a certain level as defined by the government. The employer must submit a petition to the U.S. Citizenship and Immigration Service (USCIS) for approval of the H-1B position.

What is the H-1B Cap?

The H-1B cap is the limit on the number of H-1Bs allowed each fiscal year.* Currently, the cap is 65,000. The fiscal year begins on October 1 when a new batch of the 65,000 H-1s becomes available. Employers are allowed to file an H-1B petition up to 6 months before the new fiscal year (April 1) so as to join the queue of new applications waiting for the October 1 date.
*The cap does not apply to all H-1B visas. Certain non-profit research positions are unlimited.

Cap-Gap Extensions

A cap-gap extension is a relatively new regulatory provision which automatically extends an eligible F-1 student’s status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to remain in the US during the “gap.” The cap-gap extension is now available to students who, as of April 1st, 2010, were either on approved OPT or in their 60-day grace period and have a pending or approved change-of-status October 1, 2010 H-1B petition with the USCIS.

This cap-gap extension will produce one of two outcomes, depending on your individual situation:

Extension of your OPT work authorization to September 30th, 2010. This happens if your approved OPT end date (on your EAD card) is April 1st, 2010 or later. For example: if your OPT ended on or before March 31st, you would not be eligible for extension of work authorization until September 30th, 2010. However, you would be allowed to stay in the US if you otherwise maintain your status.
Extension of your F-1 “duration of status.” This happens if your OPT had expired before April 1st, 2010. Again, you would be allowed to stay in the US if you otherwise maintain your F-1 status, but you are not authorized to work until the H-1b petition is approved and goes into effect October 1st, 2010.

Who is eligible for the extension?

Students in all fields of study are eligible for the cap-gap extension as long as the student has not violated the terms or conditions of his or her F-1 status. To qualify for the extension, the student must be the beneficiary of an H-1B petition that:

Has been timely filed (within the acceptance period)
Requests an employment start date of October 1st, 2010
Requests a change of status

How do I apply for the Cap-Gap Extension?

Because there is no guarantee your H-1B case will be selected for review/approval, there are two steps to the cap-gap extension process:

To receive a preliminary cap-gap extension until June 1st:
- Present a copy (PDF or paper) of your timely filed H-1B petition
To receive the cap-gap extension I-20 through September 30th:
- Present to IPS a copy of the “notice of selection” from USCIS when/if your employer receives it.

In both cases, send an email to Maria.Chaqra@indstate.edu with “Cap-Gap Extension” in the subject line. Include the following in the email:

SEVIS number
Name
Employment start and end date as indicated on EAD
Scan, then attach to the email:
- a clear, legible copy of your EAD card
Indicate whether you would like to pick up your document or have it mailed to you. If mailed, include your address.

What happens if my H-1B is denied after applying for the cap-gap extension?

If the student’s H-1B is not selected, the student will have the standard 60-day grace period from the date of the rejection notice to depart the US. However, if a denial is based on a discovered status violation, no such grace period exists and the student must leave the US immediately.

Can I travel during a cap-gap extension period and still return with my OPT I-20 and EAD?

If your EAD is expired, you will not be granted entry to the US based on the cap-gap extension. If you must travel during the extension period, be prepared to apply for H-1B visa outside the US and adjust your return travel plans accordingly. Note: Under H-1b regulations, you may only enter the US up to ten days prior to Oct. 1st.

What if my OPT expires before April 1st? Will the cap-gap extension extend my OPT?

Although your F-1 status would be extended, your OPT employment period is technically expired, and the cap-gap does not serve to reinstate or retroactively grant employment authorization. You would be required to stop working until Oct. 1st. Also, keep in mind that the 90-day unemployment rule remains in full effect during your automatically extended work authorization (if you qualify for extension of work authorization.)

How long will the Cap-Gap Extension request take?

The Office of International Programs and Services will submit the cap-gap request to SEVIS within three (3) business days of the receipt of your email, provided all information above is accurate and complete.

What do I do if my OPT expires and my Cap-Gap Extension request is still pending with SEVIS Help Desk?

Your post-completion OPT is automatically extended, whether you apply for the cap-gap extension or not. Therefore, you are allowed to continue working with your employer while the Cap-Gap Extension request is pending.

For more information contact IPS at isu-ips@mail.indstate.edu

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