For those F-1 students who graduated and were able to find an employer to file a H-1B visa for them, sometimes there is a need to invoke the Cap-Gap extension to continue working in America legally. The unique situation arises on the fact that H-1B visa can not be filed any earlier than April 1st of each year and an approved H-1B visa will not start until October 1st of the same year. For some F-1 students, their OPT or OPT STEM extension could be expiring before October 1st (but must at least expire AFTER April 1st, meaning you must have applied for H-1B during an active OPT or OPT STEM Extension), leaving them a temporary period between April and October where they would not have a legal authorization to work in America. In this particular situation, the USCIS has a Cap-Gap employment authorization status that can be invoked and thus allowing the student/employee to continue working legally.
Who is Eligible for Cap-Gap
To reiterate, the only people eligible for the Cap-Gap extension status are F-1 students with a pending H-1B visa application who have an active OPT or OPT STEM extension that will expire AFTER April 1st of the year. If the OPT/OPT STEM Extension is expiring before April 1st, you cannot invoke the Cap-Gap extension status and may have to leave the country. The H-1B visa application, at the earliest, can be filed on April 1st of the year. As long as it was filed BEFORE the OPT/OPT STEM extension expiration date, the F-1 student is eligible.
How long can I work under the Cap-Gap extension
You should understand that there are actually 2 kinds of Cap-Gap extension status.
- The first kind is when an H-1B visa was filed on your behalf but not yet received for processing by USCIS. This means that your employer has filed a H-1B visa application for you, but did not receive the I-797C Notice Of Action indicating that the USCIS has received and is processing the H-1B visa application. In this case, you can only extend your employment authorization through Cap-Gap extension until June 1st of the year.
- The second kind is when your employer filed an H-1B visa application and have received the I-797C notice of action from USCIS that the application has been received and is being processed. For this type of situation, you can have the full Cap-Gap extension on your employment, which is to extend employment authorization until September 30th of the year.
How to get Cap-Gap employment extension
In order to get this unique Cap-Gap extension, you must contact your school’s international student office. If there is time, you should always wait until your employer has received the I-797C notice of action from USCIS and that the USCIS acknowledges the receipt and processing of the H-1B visa application. This gives you the maximum extension under the Cap-Gap rule, which is to extend employment until September 30th. Check with your school’s international student office for exact rules, but generally you would need the following:
- Completed application for Cap-Gap extension (varies between schools)
- Fee, if required by your school
- Copy of current I-20
- Copy of current EAD card, front and back
- For applying for the second kind of cap-gap, the I-797C from USCIS indicating that the H-1B application has been received and is being processed.
- For applying for the first kind of Cap-Gap which only extends until June 1st, then you need to provide a statement from your employer stating they filed a H-1B visa for you and the delivery notice of the application showing it was sent and delivered to USCIS.
Time Frames for Cap-Gap extension
Generally the time of processing solely depends on your school’s internationals student office. Some schools turn it around very fast while others may take a week or two. Always try to apply as soon as you can but not too soon (before the I-797C is received, if possible). Once approved, your school will issue you a new I-20 which has an endorsement for the Cap-Gap employment extension. There is some leeway here with the processing time of the Cap-Gap employment extension. If you applied for Cap-Gap and for some reason you did not receive a new I-20 BEFORE your OPT expired, it is actually OK to continue working. The USCIS has a rule that anyone who is eligible for Cap-Gap, automatically gets that status with a pending H-1B application regardless of the stage of the Cap-Gap extension. This is not to say you don’t have to apply for Cap-Gap through your school, you still need the new I-20 with the Cap-Gap endorsement. However, this means that you don’t have to temporarily stop working or be out of status with a pending Cap-Gap application and an expired OPT.
What if the H-1B visa is rejected
Suppose you have a Cap-Gap extension approved and employment authorization extended until September 30th, however your H-1B visa application was rejected, then you still must leave the country within 60 days from the notice of rejection. For example, if you have an approved Cap-Gap extension but you received a rejection letter from USCIS denying you H-1B visa on May 1st, then you must leave the country by August 1st. It does not matter if you have a Cap-Gap extension until September 30th, the reason being that you are already out of OPT status and if you have a rejected H-1B visa, you really shouldn’t be in the country anymore.
Can you travel during Cap-Gap extension
Simple answer is no. During Cap-Gap, you are technically out of F-1 visa status because your OPT has expired. If you leave the country, you cannot re-enter on the F-1 visa as it is considered expired and terminated. You can only return on H-1B visa, tourist visas, or any other visa that you apply from outside America. If you don’t have a new visa to use to return to America, DO NOT TRAVEL during a Cap-Gap extension.