What is the Cap-Gap Extension?
The U.S. Citizenship and Immigration Services (USCIS) proposed an interim final rule for the 2009-2010 fiscal year that ameliorates the so-called "cap-gap" problem by extending the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the student is given an extension that enables him/her to remain in the United States until the requested start date indicated on the H-1B petition, technically October 1, 2009.
The Designated School Official (DSO) at the Office of International Services (OIS) will process the Cap-Gap Extension I-20 on behalf of the student. In order for the DSO to indicate that a student has a Filed or Waitlisted Cap-Gap Extension, the student must be able to provide proof that the petition has been filed or waitlisted.
Who is eligible?
Unlike the 17-month extension of post-completion OPT, which is limited to F-1 students who have obtained STEM degrees, the cap-gap extension of status applies to all F-1 students in all fields of study with pending H-1B petitions during the current fiscal year. For employment authorization to be extended during the cap-gap, the student has to have an approved period of post-completion or STEM OPT with a future OPT end date. The OPT end date must be after the date the H-1B petition was filed.
A student who does not have post-completion OPT or STEM OPT, or whose post-completion OPT or STEM OPT has expired before the H-1B petition was filed, will have the duration of status extended, but will not have cap-gap work authorization.
How do I apply?
Once your employer has submitted your H1-B petition you can request a cap-gap extension of your current I-20 as technically the cap-gap extension officially commences on the date the I-129 petition and fee are received by the Service Center (however, please see the section “How is the Cap-Gap I-20 endorsed to indicate employment authorization” as the extension date will vary according to the status of the H-1B petition).
You will need the following documents to apply for a “Cap-Gap Extension”
- For a properly filed H-1B petition: A statement from the employer that the student is the beneficiary listed on a properly filed H-1B petition and proof of delivery to a USCIS Service Center showing the date of receipt
- For a wait-listed H-1B petition: A copy of the waitlist letter from USCIS to the employer
- For a receipted or approved H-1B petition issued by the USCIS: A copy of the Form I-797A (approval for a change of status) or I-797B (approval for a change of status through consular processing)
- Copy of current I-20
- Copy of current EAD card (Employment Authorization Document)
How is the Cap-Gap I-20 endorsed to indicate employment authorization?
International Programs will process an I-20 that takes into account the different stages of the H-1B filing, selection, and adjudication process. The cap-gap Form I-20 will contain the following endorsement:
“F-1 status and employment authorization for this student have been automatically extended to [the applicable date will be inserted]. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR214.2(f)(5)(iv) and 8 CFR274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944). Additional information about the automatic extension can be found on the Student and Exchange Visitor Program website.
What do I do if my OPT expires and my Cap-Gap Extension request is still pending with the USCIS?
Under the new rule, the Cap-Gap Extension is a period in which an eligible F-1 student’s status is automatically extended to bridge the gap between the end of F-1 status and the start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student’s post-completion OPT is automatically extended. Therefore, the student is allowed to continue working with the employer while the Cap-Gap Extension request is pending.
What happens if after I become eligible for an automatic Cap-Gap Extension and employment authorization, but my H-1B petition is subsequently rejected, denied or revoked?
If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension, the student will have the standard 60-day grace period (from notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the U.S., change degree level, transfer to another SEVIS approved school, or change status as long as the student has not otherwise violated status.