H-1B Cap-Gap Issue


October 1st is approaching and with the USCIS slow processing of H-1B cases, many H-1B applicants are anxious about their case results, especially those whose OPT/F-1 status is going to expire or has already expired during their H-1B case’s pending period.  Many clients ask, “Can Istay here and continue working after myOPT expires or after October 1st?”  This is called “Cap-Gap” issue.  We can find the answer from USCIS guidance.

What is “Cap-Gap”?

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students. 

My OPT expired during my H-1B case’s pending period.  Am I covered by the cap-gap extension? 

If your H-1B was filed while your OPT status had not yet expired and your H-1B requires a start date of 10/1/2011, you will be covered by this cap-gap extension.  This automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.   You can continue working during this period. 

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.

If my case has still not been approved after October 1, 2011,canI continue working?

Yes, you can work until the H-1B petition adjudication process has been completed if your H-1B was filed before your OPT expires. 

Can I continue working if my H-1B was filed after my OPT expired but during my OPT 60-day grace period? 

No, you cannot work because your 60-day grace period are not employment-authorized. The automatic cap-gap extension only extends your status at the time of the H-1B case filing.  So in this situation, only your grace period is extended.  Although you cannot work, you can stay here in the US to wait for the completion of your H-1B petition adjudication. 

Can I get a proof of continuing status under this automatic cap-gap? 

Yes, you should go to the Designated School Official (DSO) of your school (usually an international office) with evidence of your H-1B case filing receipt (Form I-797, Notice of Action)from USCIS.  The DSO will issue a cap-gap I-20 indicating the continued extension of F-1 status.  

If my H-1B is denied, am I still allowed the 60-day grace period?

Yes. If USCIS denies your H-1B case, you will have the standard 60-day grace period from the date of the notification onthe denial before you are required to depart the United States.

Can I travel outside the United States during a cap-gap extension period and return in F-1 status?

No. You cannot travel outside the United States with your F-1 visa during the cap-gap extension. If you leave the US before your H-1B is approved, you will need to apply for an H-1B visa at a consular post abroad prior to returning after your H-1B is approved and come back to the US not more than 10 days before the H-1B state date.