“Cap-Gap” Relief

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.

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

Work with us from anywhere in the world with your own secure, personalized Client Portal.

We strive to accommodate clients who have varying work schedules. In certain cases, we meet clients outside work hours or through Skype & Google Hangout meetings. HBM Law offices was born in the Cloud – our clients receive a personalized, secure, cloud-based Client Portal that allows them to track their case progress, view their file, communicate with our office, upload documents, and more from anywhere in the world!