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
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.