Is your OPT expiring before your change of status to H-1B becomes effective on October 1 of the following fiscal year?  Will you fall out of status?  Is there an extension you can file?

Earlier an F-1 student’s OPT expiring before October 1 required the student to leave the US and return at the time his or her H-1B status became effective at the beginning of the next fiscal year on October 1. This created a hardship for a number of students and became a disincentive for U.S. employers to petition for F-1 students whose OPT’s expired during this “cap gap.”

On April 2008, Department of Homeland Security issued a regulation, commonly known as “cap-gap” relief that bridges the “gap” between the end of the OPT status until October 1 of the next fiscal year.  The cap-gap relief automatically extends the F-1 student’s status and the student’s OPT employment authorization to October 1 as long as the F-1 student’s EAD was valid when the H-1B change of status petition was filed.

Cap-gap relief prevents F-1 students from being unemployed during the cap-gap period and falling out of status.  However if the student does not have a valid EAD than the employment is not authorized during the cap-gap period and cap-gap relief cannot be utilized.

Provided that the F-1 student’s EAD is valid at time of H-1B filing, the F-1 student is eligible for cap-gap relief if the following three requirements are met:

• The H-1B petition must have been timely filed with a request for change of status
• The H-1B petition must request a start date of October 1 of the following fiscal year, and
• The beneficiary did not violate the terms and conditions of his or her nonimmigrant status

FAQs:

• How do I apply for the cap-gap relief?

The F-1 student should communicate with his or her school official (DSO) to obtain a new I-20 reflecting the extension of valid immigration status.  This extension also applies to any F-2 dependents of the F-1 student.

If processing times for H-1B petitions is very slow, USCIS may prioritize the adjudication of the H-1B change of status cases for F-1 cap-gap students because after September 30 they will be prohibited from continuing employment.

• My H-1B petition was denied.  Can I still work on the cap-gap relief?

The cap-gap relief is immediately terminated upon rejection, denial, revocation, or withdrawal of the H-1B petition.  In this scenario the F-1 student enters the 60-day grace period.

• Can I apply for a STEM Extension during cap-gap relief?

Yes, during the cap-gap period the F-1 student may apply for the 17-month STEM extension if eligible.  However, if the H-1B is withdrawn, revoked, or denied and the student has entered the 60-day grace period, he or she will no longer be eligible to apply for a STEM extension.

• My H-1B petition was filed during the 60-day grace period.  Can I still apply for cap-gap relief?

No because F-1 student’s EAD must be valid at the time the H-1B is filed.  Cap-gap relief does not serve to retroactively grant employment authorization.

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Please contact HBM Law Offices, LLC for an examination of your particular facts.