H-1B Cap-Gap Extension of Authorized F-1 OPT
We have many students on F-1 OPT whose employers will seek to extend their work authorization in the U.S. by applying for an H-1B visa (temporary worker in a professional, specialty occupation). There is a limit (“cap”) on the number of H-1B visas available to employers subject to this cap — 65,000, plus an additional 20,000 for individuals with an advanced degree (Master’s degree or higher) from a U.S. institution. These visas are available during the government Fiscal Year (October 1 through September 30). H-1B cap-subject petitions can only be filed as early as April 1 (for an October 1 start date) each year. In recent years, more than twice the numbers of H-1B petitions are received than there are visas available. Therefore, it is not uncommon for an F-1 student who graduates in the Spring semester with 12 months of Post-Completion OPT to have their OPT authorization expire in advance of October 1 – leaving a “Gap” between the OPT end date and the H-1B start date of October 1.
Under U.S. Department of Homeland Security regulations, a student with an authorized period of Post-Completion F-1 Optional Practical Training or F-1 STEM OPT Extension, who is the beneficiary of a timely-filed H-1B petition requesting “Change of Status” (not “Consular Notification”) filed by their employer, will automatically have their status and employment authorization automatically extended from the ending date of the OPT/STEM OPT period [as indicated on the Employment Authorization Document (EAD) card] until the starting date of the approved H-1B status (October 1). [8 CFR 214.2(f)(5)(vi)]
To clarify, automatic extension of F-1 status and employment authorization is granted if (a) the employer timely-filed cap-subject H-1B petition (generally April 1, or soon after), as communicated by USCIS), and (b) where the student’s OPT authorization is valid past that filing deadline.
If a student’s OPT authorization expires before the H-1B timely-filing deadline (generally prior to April 1), but the petition is still considered timely-filed (the OPT authorization expired less than 60 days prior to the H-1B timely-filing deadline – also called the F-1 “grace period”), a student’s F-1 status is considered automatically extended, but employment authorization is not extended. In this case, a student may be allowed to remain in the U.S. until the start date of the H-1B status, but are not allowed to continue with employment.
Authorization to remain in the U.S., and any authorized extension of employment authorization, will be valid if the above conditions are met, until September 30, unless the H-1B petition is denied, withdrawn, or revoked.
EXAMPLE: An MIT F-1 student graduates on May 29, 2019, and applies for and is granted OPT valid from July 1, 2019 through June 30, 2020. Their H-1B cap-subject employer files an H-1B petition (requesting “Change of Status”, not “Consular Notification/Processing”) on their behalf on April 1, 2020 for the eligible fiscal year October 1, 2020 start date. The H-1B petition is approved, with the October 1, 2020 start date. While the F-1 student’s 12-months of OPT authorization (and EAD card) ends on June 30, 2020, since the student is the beneficiary of a timely-filed and approved H-1B petition starting October 1, the student can remain in the U.S. from June 30, 2020 through September 30, 2020 and continue working under the terms of F-1 OPT, and on October 1, 2020 the student’s status becomes H-1B.
How does the student show evidence of extended work authorization?
The student can first provide (via E-form through iMIT) a copy of the H-1B Receipt Notice (Form I-797), proof of the timely-filed H-1B petition, and then the H-1B Approval Notice (Form I-797), to the ISO. The ISO will then issue the student an updated Form I-20 (which will include a notation for OPT Cap-Gap Extension). No new EAD card is issued by USCIS for this OPT Cap-Gap period.
May a student travel during the Cap-Gap period?
You are strongly advised not to travel during the Cap-Gap period since requirements for applying for entry visas from U.S. Consulates abroad, and entry to the U.S., require a valid Employment Authorization Document (EAD) Card. During an authorized Cap-Gap period, a student will not have a new EAD card (only the expired card) and a Form I-20 noting the Cap-Gap authorization. Per U.S. Department of Homeland Security guidance, this is not sufficient documentation for purposes of re-entry to the U.S. in F-1 status.