May 6, 2020

1. What is the H-1B?

The H-1B status permits temporary employment (up to 6 years) in the U.S. for people who have a minimum of a Bachelor’s degree in the same or a related field as the job offered. The employer must submit a petition to the U.S. Citizenship and Immigration Service (USCIS) for approval of the H-1B position.

• What is the OPT Cap-Gap Extension?

A Cap-Gap extension is a regulatory provision which extends an eligible F-1 student’s status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to legally stay and work in the US during the “gap.”

• Do I qualify for the OPT Cap-Gap Extension?

The Cap-Gap extension is available to students who, are either on approved OPT or STEM OPT or in their 60-day grace period and have a pending or approved change-of-status for an October 1st cap-subject H-1B petition with USCIS which was filed prior to the expiration of their OPT/STEM or 60-day grace period.

• What does it mean to have filed for an Oct. 1 Cap subject H1-B petition prior to the expiration of their OPT/STEM or 60-day grace period?

The H1-B registration process is different than the H1-B Change of Status filing process.

To qualify for the F-1 OPT Cap-Gap Extension:

• the employer must have submitted Form I-129 requesting Change of Status with an employment start date of October 1, and
  • that I-129 filing must have been received by USCIS before the expiration of the OPT/STEM EAD or 60-day grace period. 

Those filing for H-1B via consular processing do not qualify for the Cap-Gap Extension. You must confirm with your employer if the H-1B will be filed as a “Change-of Status” or via “Consular Processing.” You may be eligible for one of two Cap-Gap extension benefits:

• If the employer filed your H-1B (change-of-status) petition and it is received by USCIS prior to your post-completion OPT expiration date, you qualify for an extension of your OPT employment authorization.
  • If the employer filed your H-1B (change-of-status) petition and it is received by USCIS after your post-completion OPT expires but during your 60 day grace period following OPT, your F-1 status and permission to remain in the US are extended but you are not eligible to work.

• Can I file for an H-1B and a STEM OPT Extension at the same time?

Yes, but filing these applications concurrently can sometimes cause complications in your  record. You can apply for a STEM OPT Extension before your OPT EAD expires. If you are planning to file for an H-1B and STEM at the same time, you should submit your OPT STEM application on time, before the original 12 month EAD expires. 

Although you have H-1B petition pending, it does not guarantee H approval down the road. We suggest you always extend your STEM OPT in case H is rejected or denied.

You should also be mindful to take extra steps when filing for your STEM Extension and continuing your F-1 status. Please consult with your lawyer on this.

• Can I also apply for a STEM OPT Extension before my Cap Gap period starts? (BEFORE my OPT EAD expires)

Yes, you can apply for a STEM OPT Extension before your OPT EAD expires. If you are planning to file for an H-1B and STEM at the same time, you should submit your STEM OPT application on time, before the original 12 month EAD expires. 

• Can I apply for a STEM OPT Extension during my Cap Gap period?  (AFTER my OPT EAD expires, but BEFORE the Cap-Gap extension expires Sept 30)?

We do not advise submitting a STEM OPT Extension application after the expiration of your original 12 month OPT EAD, even if you have a Cap-Gap Extension on your I-20 which extends your OPT until Sept 30. 

STEM applications submitted after the end of the OPT EAD, but during the Cap-Gap period carry a very high risk of denial. Additionally, for those applications that are approved, if the H-1B is later denied, it could cause serious problems the STEM OPT Extension and F-1 record. In most cases, the H-1B denial will result in the ending of the STEM Extension and F-1 record.

• I am already approved for a STEM OPT Extension, and my STEM OPT Extension is expiring. Can I qualify for Cap-Gap Extension to start after my STEM OPT expires?

Yes, STEM extension holders may qualify for the Cap-Gap Extension if they meet eligibility requirements.

• My employer filed for my H-1B and the petition has been approved. Should I file for the STEM Extension if my H-1B is already Approved for Oct. 1?

You may not need a STEM extension if your OPT is ending and your H-1B has already been approved. Discuss it with your lawyer if you prefer to maximize your OPT period before H starts.

• What if my OPT expires before my employer files for the H1-B Change of Status? Will the preliminary or automatic Cap-Gap Extension extend my OPT?

Your F-1 status would be extended if you are in your 60-day grace period when the petition is filed, however, if your OPT employment authorization period expired, then the Cap-Gap does not serve to reinstate or retroactively grant employment authorization.

 Your legal status to remain in the U.S. in F-1 status is extended, but you are required to stop working until your H-1B goes into effect on October 1st ( or at whatever date your Change of Status becomes effective).

• What if my regular Cap Gap Extension until Sept. 30 expires and my H-1B is not yet approved?

If your H-1B has not yet been accepted for processing nor has it been receipted, you cannot extend your OPT past September 30 unless you can qualify for and submit a timely filed OPT STEM Extension.

If your H-1B is not approved by Sept. 30, your F-1 employment authorization will end. Discuss with your lawyer if you could continue stay in U.S.

• What happens if my H-1B is rejected, withdrawn, or denied after applying for the Cap-Gap Extension?

If the student’s H-1B is not selected, or is withdrawn, denied, or revoked, the student will have the standard 60-day grace period from the date of the rejection notice or the end of OPT whichever is later, to prepare for and depart the U.S. In some cases it may be possible to apply for an I-20 transfer during the grace period, but this is often not available. However, if a denial is based on a discovered status violation, no such grace period exists and the student must leave the U.S. immediately. 

Our experienced attorneys have years of experience working in immigration law so know that you are in good hands. You may contact Attorney Jing Amy Feng at jfeng@fengvisa.com if you have any questions.