OPT and H-1 CAP GAP

For those F-1 and OPTs out there, a cap-gap extension is a relatively new regulatory provision which automatically 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.” The cap-gap extension is now available to students who, as of April 1st, 2009, were either on approved OPT or in their 60-day grace period and have a pending or approved change-of-status October 1, 2009 H-1B petition with the USCIS.

This cap-gap extension will produce one of two outcomes, depending on your individual situation:

1. Extension of your OPT work authorization to September 30th. This happens if your approved OPT end date (on your EAD card) is April 1st or later.
2. Extension of your F-1 “duration of status.” This happens if your OPT had expired before April 1st, 2009. Again, you would be allowed to stay in the US if you otherwise maintain your F-1 status, but you are not authorized to work until the H-1b petition is approved and goes into effect October 1st, 2009.

Who is eligible for the extension?

Students in all fields of study are eligible for the cap-gap extension as long as the student has not violated the terms or conditions of his or her F-1 status. To qualify for the extension, the student must be the beneficiary of an H-1B petition that:

1. Has been timely filed (within the acceptance period)
2. Requests an employment start date of October 1st, 2009
3. Requests a change of status

How do I apply for the Cap-Gap Extension?
Because there is no guarantee your H-1B case will be selected for review/approval, there are two steps to the cap-gap extension process:

1. To receive a preliminary cap-gap extension until June 1st:

• Present a copy (PDF or paper) of your timely filed H-1B petition and a FedEx, UPS, or USPS Express/certified mail receipt.

1. To receive the cap-gap extension I-20 through September 30th:

• Present to BIO a copy of the “notice of selection” from the USCIS when/if your employer receives it.