Cap gap OPT that bridges OPT and H1B

F-1 visa students can engage in full-time work opportunities in the United States through the OPT program after graduation. If the employer and you are willing to work beyond the OPT end date, you can file the H-1B petition.

What if you filed the H1B petition but haven’t heard back regarding the result while your OPT or STEM OPT end date is near? In this case, you can take advantage of the Cap-Gap OPT program that bridges OPT and H1B.

In this blog post, the eligibility of the Cap-Gap OPT, Cap-Gap OPT process, and travel restrictions will be discussed.

Contents

• What is Cap Gap extension
• Eligibility of Cap Gap OPT
• Cap-Gap OPT process
• Cap-Gap extension and travel

What is Cap-Gap extension

To start off, I will use an example to explain in which scenario students might need the Cap gap OPT. Sarah graduated from the college on May 10th, 2020, and chose June 10th, 2020 as the OPT start date. As the OPT program allows students to work for a year, Sarah needs to either leave the country or change her status by June 10, 2021. Thankfully, her employer is willing to sponsor her for the H-1B process. If she hears back regarding the H-1B result before the OPT end date, Sarah can stay and work in the United States.

However, if she doesn’t hear back regarding the result by June 10, 2021, there’s a gap between the OPT end date and the first date that she can work through H-1B (October 1st, 2021). In this case, she can take advantage of the Cap-Gap OPT to stay and work in the United States until her H-1B petition gets approved/rejected.

The good thing about Cap-Gap OPT is that you don’t have to file the application unlike initial OPT or STEM OPT. It is worth mentioning that it is important to file the H-1B petition before the OPT ends as it affects your work eligibility during the cap-gap period.

Eligibility will be discussed in detail in the following section. Before we jump into the eligibility, please refer to the following breakdown of how the Cap-Gap OPT works for your better understanding:

• March 2021: Sarah and her employer filed the first H-1B petition during the initial H1B registration process.
• April 2021 ~ September 30, 2021: If Sarah is selected for the H1B filing, she/her employer will receive an H-1B Registration Selection Notice. Within 90 days from the H1B Notice issued to date, the employer files a Form I-129, “Petition for Nonimmigrant Worker.”
  • Please note that receipt of an H-1B Registration Selection Notice does not qualify an F-1 student for a cap-gap extension. To qualify for the Cap-Gap OPT, employers must file a Form I-129.
• June 2021: Sarah’s initial OPT ends
  • If H-1B is approved: Sarah can continue to work and stay in the United States from June 11 ~ to October 1, 2021, using the automatic Cap-Gap OPT.
  • If H-1B is rejected: Sarah needs to depart the country before August 10, 2021, which is 60 days after the OPT end date
• October 2021: The first date she can work through H-1B visa

The duration of status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), of an F-1 student who is the beneficiary of an H-1B petition subject to section 214(g)(1)(A) of the Act (8 U.S.C.1184(g)(1)(A)) and request for change of status shall be automatically extended until October 1 of the fiscal year

8 CFR 214.2(F)(5)(VI)(A)

Eligibility of Cap-Gap OPT

To be eligible for the Cap-Gap OPT, OPT participants should well maintain their non-immigrant status meaning that they don’t go out of status. In addition, once H-1B is approved, the F-1 student should initiate the Change of Status status from F-1 to H-1B. The immigration regulation 8 CFR 214.2(f)(5)(vi) also requires the following two requirements. To be eligible for Cap-Gap OPT, the H-1B petition should…

1. has been timely filed; and
2. states that the employment start date for the F-1 student is October 1 of the following fiscal year.

The number one bullet point explains that in order to legally work and stay in the U.S. during the gap period, the H-1B petition should be filed before the OPT end date. Otherwise, the petitioner only can stay in the United States during the gap period.

The second bullet point introduces the concept of the fiscal year. The fiscal year starts from October 1st to September the next year. This is why the first date that H-1B visa holders can start working is October 1st. In terms of the H-1B application period, though, it starts in March of the previous Fiscal Year. Here I am going to breakdown the H-1B process that I used above from the fiscal year perspective:

• March 2021: The fiscal Year 2022 H-1B petition open date– Sarah and her employer file the first H-1B petition
• April 2021 ~ September 30, 2021: If Sarah is selected, she and her employer will be given an H-1B Registration Selection Notice and they have 90 days to file Form I-129 to be eligible for the Cap-Gap OPT.
• June 2021: Sarah’s initial OPT ends
  • If H-1B is approved: Sarah can continue to work and stay in the United States from June 11 ~ to October 1, 2021, using the Cap-Gap OPT.
  • If H-1B is rejected: Sarah needs to depart the country before August 10, 2021, which is 60 days after the OPT end date
• October 2021: The first date H-1B visa holders of the Fiscal Year 2022 start working– she can work through H-1B visa

Cap-Gap OPT process

The H-1B process is updated in the system named CLAIMS which can be integrated with SEVIS which manages F-1 students’ records. Therefore, when the H-1B petition is filed, then successfully integrated into SEVIS, the SEVIS record will be updated as below:

• If your original OPT end date was before September 30, it will be automatically changed to September 30.
• The OPT end date on the SEVP portal will reflect the new OPT end date (September 30).
• The updated I-20 will have the following Cap-Gap Extension notation:
  • If CLAIMS was updated before the OPT end date: the I-20 will say “the student is authorized to remain in the United States and continue employment.” *Please see attached picture below for the example.
  • If CLAIMS was updated after the OPT end date: the I-20 will only say the student is authorized to remain in the United States.

If the H-1B update is not integrated successfully into SEVIS, your DSO (Designated School Official) can reach out to SEVP Response Center and request a data fix. To prove that you successfully filed the H-1B petition on time, it is encouraged to submit the receipt that you have received after filing the H-1B petition.

Cap-Gap extension and travel

When you change your status from F-1 to H-1B, leaving the country will be considered as you give up the H-1B petition. In this regard, it is encouraged to not plan any international travels while waiting for the H-1B petition result.

Cap-Gap extension is one of the few benefits that doesn’t require students to complete the application form. What is more, the H-1B status is going to be updated automatically.

Therefore, if you are going to file the H-1B petition, make sure that you do so before the OPT end date so that you can be eligible for both working and staying in the United States. Also, reach out to your DSO to receive the updated I-20 with Cap-Gap extension remarks. If you have been worried because of the delayed H-1B process, the Cap-Gap OPT will set you free 🙂

To not miss any important OPT and STEM OPT-related issues, click OPT and STEM OPT pages respectively.