H-1B "Cap Gap"
H-1B and Cap-Gap Extension Frequently Asked Questions
What is an H-1B and its Cap?
The H-1B status permits temporary employment (up to six 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 employer must submit a petition to the U.S. Citizenship and Immigration Service (USCIS) for approval of the H-1B position. Regulations prohibit employers from filing H-1B petitions until six months before the date of actual need for the employee. 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-1Bs 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. See the USCIS web site for the most current count of H-1B petitions filed. The cap does not apply to all H-1B visas. Certain non-profit research positions are unlimited.
The gap is the period between the end of an individual's F-1 status and the beginning of the individual's H-1B status.
What is a Cap-Gap Extension and who is eligible?
A Cap-Gap Extension is a regulatory provision which 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." There are two types of Extensions: - Extension of status and employment authorization - You may be eligible for an Extension of your F-1 status and authorized period of post-completion OPT (including the 24-month Extension) in the following circumstances:
- Your employer files an H-1B petition in a timely manner with USCIS with an employment start date of October 1.
- You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
- You are in an authorized period of post-completion OPT (including the 24-month Extension) on the date your potential employer files your H-1B petition.
- USCIS receives the H-1B petition in a timely manner.
- Extension of status only - You may be eligible for an Extension of your F-1 status through September 30 if you meet the following requirements:
- Your potential employer files an H-1B petition in a timely manner with USCIS with an employment start date of October 1.
- You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
- USCIS receives the H-1B petition in a timely manner.
While you are generally eligible for a Cap-Gap Extension if you meet the above qualifications, your individual case may be different. You should always talk with an OS advisor about whether you qualify for a Cap-Gap Extension of your F-1 status and, if applicable, your work authorization.
Those filing for H1-B via consular processing - do not qualify for the Cap-Gap Extension. You must confirm with your employer if the H1-B will be filed as a change-of status or via consular processing.
- Extension of status and employment authorization - You may be eligible for an Extension of your F-1 status and authorized period of post-completion OPT (including the 24-month Extension) in the following circumstances:
How do I apply for a Cap-Gap Extension I-20?
Students must submit by email the following documents, as a single PDF attachment, to [email protected]. Indicate "Cap-Gap Extension, Last Name" in the subject line.
- Completed request for Cap-Gap Extension I-20 form [PDF].
- Clear, legible copy of your most current EAD Card.
- A copy of the I-797 receipt notice (or approval notice) from USCIS.
If your H-1B petition has been filed by your employer but not receipted, and your OPT expires before June 1, you are eligible for a preliminary Cap-Gap Extension through June 1. Then indicate your submission of:
- A copy of the timely filed H-1B petition.
- A copy of the express mail showing USCIS received your application.
How long will the Cap-Gap Extension request take?
The EMU Office of International Students will submit the Cap-Gap request to SEVIS. Please allow for 10 or more business days for processing after submitting your completed documents
What happens if my H-1B is denied after applying for the Cap-Gap Extension?
If the student's H-1B is not selected and the duration of their OPT is over, the student will have the standard 60-day grace period from the date of the rejection notice to depart the US, transfer the I-20 to a new program, or apply for a change of status. However, if a denial is based on a discovered status violation, no such grace period exists and the student must leave the U.S. immediately.
Can I travel during a Cap-Gap Extension period and still return with my OPT I-20 and EAD?
A valid EAD card is required to re-enter during the Cap-Gap Extension period along with a valid passport, F-1 visa, signed I-20 and employer letter. Students with EAD cards that have expired are not eligible to re-enter the U.S. during the Cap-Gap Extension period. Please note, traveling outside the U.S. may interfere with the processing of your H-1B petition. EMU OISS strongly advises students to consult with their employers regarding all travel plans before departing the U.S.
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 the 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 October 1.
What if my OPT expires before April 1st? Will the preliminary or automatic Cap-Gap Extension extend my OPT?
Although your F-1 status would be extended if you are in your 60-day grace period when the petition is filed, your OPT employment authorization period has expired, and the Cap-Gap does not serve to reinstate or retroactively grant employment authorization. Your legal status to remain in the U.S. in F-1 status is extended, but you are required to stop working until your H-1B goes into effect on October 1. Does my dependent's status also get extended under this Cap-Gap provision?
An automatic Extension of an F-1 student's duration of status also applies to the duration of status of any F-2 dependents.