The Cap Gap Extension for F-1 Students

Posted on October 11th, 2017, by Livesay & Myers, P.C. in Immigration Law. No Comments

Immigration LawEvery year, many foreign national F-1 students try to change from F-1 student status to H-1B status after they complete a program of study or period of optional practical training (OPT). Since OPT generally requires employment with a U.S. business or organization, this usually coincides with the filing period for H-1B status which occurs during the first week in April. H-1B status allows foreign nationals with a bachelor degree or higher to work in the U.S. in specialty occupations.

The number of people who can obtain the H-1B status is regulated by a numerical limit, or “cap,” each fiscal year—which runs from October 1st to September 30th. The cap is set at 65,000 plus an additional 20,000 reserved for those with master degrees or higher. Note not all H-1Bs are subject to the cap. Institutions of higher education or their related nonprofit entities, as well as nonprofit and government research organizations, are exempt from the H-1B cap. They can file H-1B petitions any time of the year.

H-1B status takes effect each fiscal year beginning October 1st. Foreign nationals with H-1B petitions filed and/or approved are eligible to start working for their petitioning employer on that date. Sometimes, however, the foreign national’s OPT period of authorization and F-1 status ends before October 1st. This leaves a period of time during which the foreign national loses both valid status and employment authorization. This period between the end of OPT and the beginning of the H-1B status is referred to as the “Cap Gap.” To deal with the “Cap Gap,” the Department of Homeland Security published a rule in 2008 that automatically extended the foreign national’s F-1 status. The rule is called the “Cap-Gap Extension.”

To be eligible for the “Cap Gap Extension,” an employer must have timely filed an H-1B petition on behalf of the foreign national before the expiration of their OPT status. The foreign national will maintain valid status and be authorized to continue working until the final adjudication of the H-1B petition. However, if the H-1B petition is filed after the completion of the foreign national’s academic program or after the expiration of OPT, but during the 60-day standard grace period after completion of their academic program (in which foreign nationals are ordinarily expected to depart the U.S.), the foreign national’s legal status is extended to October 1st. However, they would not be authorized to work during this gap period.

If the H-1B petition is denied, withdrawn, revoked, or rejected, the foreign national’s status and employment authorization ends. The foreign national should be eligible for the 60-day grace period from the latest to occur of the following: (a) the date of notice of the denial, withdrawal, revocation or rejection of their H-1B petition, (b) the end of their academic program, or (c) the expiration of OPT. If the H-1B petition is denied due to violation of the foreign national’s F-1 status, no grace period is granted.

Once the H1B petition is filed, the foreign national should inform their designated school official (DSO) of the filing and provide proof of filing. The DSO will then issue a cap-gap Form I-20, “Certificate of Eligibility for Nonimmigrant Status” that extends the foreign national’s F-1 status. The I-20 can be used as evidence of status and employment authorization.

Traveling on the Cap-Gap Extension

A foreign national in F-1 status may generally travel abroad and seek readmission to the United States during their cap-gap period if:

  • the H-1B petition has been approved by United States Citizenship and Immigration Services;
  • the foreign national seeks readmission into the U.S. before his or her H-1B employment begins (which is usually the start of the fiscal year, October 1st); and
  • the student is otherwise admissible and has all proper documentation such as a valid, signed Form I-20 and an F-1 visa.

However, if a foreign national student travels abroad before the approval of their H-1B petition, the petition will be deemed abandoned. Meaning, if a student leaves the United States before the approval of their H-1B petition, the foreign national will not be able to re-enter the United States as an F-1 student pursuant to the Cap-Gap extension rule.

If you require assistance with an immigration matter anywhere in the United States, the immigration attorneys at Livesay & Myers, P.C. can help. From our offices in Northern Virginia, we represent clients in Virginia, D.C. and across the United States. Contact us to schedule a consultation today.

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Livesay & Myers, P.C. is a law firm with offices in Fairfax, Manassas, Leesburg and Fredericksburg, Virginia.

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