A Start To Finish Guide : H1B OPT Cap Gap Extensions

Immigration Guides | Richard Herman

H1B beneficiaries are non-immigrants offered temporary employment authorization and who perform services in a specialty occupation. The “cap” refers to a limit on the number of applicants who can get the H1B status up to date every fiscal year. Each fiscal year begins on October 1st of the previous calendar year for the purposes of the cap.

Certain regulations govern application for H-1B petitions prohibiting employers and related nonprofit entities from filing six months before the employee needs it. If an employer filed any petition before the end date either for work authorization or higher education, the appropriate authority may not confirm eligibility.

Several issues arise with applications for H1B OPT and F-1 status gap, in which an arm of the US government creates measures to resolve these issues around work authorization. One of those is the chance to apply for H1B opt cap extensions or seek readmission before your program end date. This article contains everything you need to know about the extension for those who generally travel abroad for work or a master’s degree, including who is eligible, who isn’t, and how to apply.

Can One Apply for OPT Extension During Cap Gap Period?

You can apply for OPT extension during cap gap if you are eligible for a cap-gap extension of post-completion OPT employment and F-1 status. If a student seeks readmission, this also applies to them.

However, you may not apply for a STEM OPT extension if the extension period for cap-gap is terminated. That means if your H-1B petition is denied, revoked, withdrawn, or rejected, and you’re in the grace period, you cannot apply for OPT extension during cap-gap. A federal register is kept to ensure the legal status of individuals and when their OPT expires is monitored.

What is the H1B Cap Gap Extension?

The H-1B cap gap extension is a provision offered to eligible F-1 students. It allows students with such status to shorten the space between the end of OPT and beginning of their H1B status. Current rules and regulations allow specific students with an approved or pending cap H-1B petition to remain in the F-1 status during cap-gap.

The regulations offer a way of bridging the gap between those two statuses that otherwise wouldn’t occur if there isn’t an extension.

The US Department of Homeland Security set the rules that automatically extend applicable F-1 status and post-completion OPT employment authorization from 1st April to 30th September.

Is H-1B Extension Subject to CAP?

A cap-subject employer doesn’t need to worry about H1B cap for extension or renewal since they’ve already been counted against the cap. Cap doesn’t come into play on an H1B extension or renewal. To get an H1B extension, an employer has to file a new Form 1-129 and pay additional filing fees.

What if the H-1B Extension Is Still Pending After October 1st Cap Gap OPT?

There is a 240-day rule that lets international employees with pending H1B petitions continue working for their current employer for eight months (240 days). Or, they continue working with the same until the petition is denied, revoked, or withdrawn. The H1B employee is still governed by the restrictions in the initial H1B visa.

The 240-day rule is not an independent H1B renewal basis, but is based on good faith for H1B extension application.

Post Completion Optional Practical Training (OPT) and F-1 Status for Students Under the H-1B Cap-Gap Regulations

The regulations allow F-1 non-immigrant students with STEM (science, technology, engineering, or mathematics) degrees to apply for a 24-month extension. However, the system’s policies concerning the cap-gap extension doesn’t change.

The policy states that an F-1 beneficiary of a cap H1B petition requesting for status change and who files on time can get an extension. Such can have an extension of their F-1 status and current employment authorization until the first day of the new fiscal year.

Once a student’s F-1 status and employment authorization expires on October 1, the cap-gap period begins – unless terminated. Cap gap happens when an employer didn’t file or the United States Citizenship and Immigration Services did not accept or the petition is submitted more than six months before the due date.

That means the earliest an employer can file an H-1B cap petition for consular processing is April 1st of the following fiscal year starting October 1st. If the USCIS approves the petition and change of status request, the student may start employment as early as October 1.

What Happens If You Travel During the Cap-gap Extension Period?

If an F-1 student travels outside the US while the petition and H-1B status change request is pending, the request will be considered abandoned. However, such students may travel abroad and seek readmission to the US during a cap-gap period if such student’s petition and request has been approved. Such may also travel if they seek readmission before their H1B employment starts and if such is otherwise admissible.

Meanwhile, even if an F-1 student meets all the listed requirements provided by the designated school official for stem OPT extension application, a US CBP officer determines whether or not such is admitted for inspection at port-of-entry. This means there is no automatic extension for the student if every procedure is not followed by international students.

Who Is Eligible for Cap-Gap Extension?

Those eligible for H-1B cap-gap extension are those who file their H1B cap petitions and change of H-1B status on time. “On time” means filing the petition for H-1B cap gap extension period during the applicable filing period beginning on April 1, and while the student’s F-1 status is still in effect.

That includes any period during the academic course of study and any authorized periods of post-completion OPT authorization that the approval notice covers.

Timely filing for H-1B cap gap extension period also means filing the petition within the 60-day grace period – otherwise known as departure preparation period for those it is automatically extended for. When this is done and a receipt notice is provided, the appropriate data fix is done.

This data fix is what shows that your receipt notice is valid, and you will want to be sure this data fix is intact at all times to avoid status violation or tampering with H-1B cap gap information.

A cap-gap H1B petition will be considered improperly filed if it is not based on a valid approval notice, selected registration and the right fiscal year. That is, unless the registration requirement for such is suspended. The automatic cap-gap extension begins immediately when a petitioner files the H-1B status change result on time.

If the petition for cap gap extension is approved, a student’s cap-gap extension or cap exempt employers will extend through September 30. If the petition for cap gap extension is denied, rejected, withdrawn, or revoked, the request will be automatically terminated.

Also, the request for cap gap extension will be terminated if the change of H-1B status request is withdrawn or denied, even if the H1B petition passes for consular processing. Other reasons why it can be denied include absence of employment authorization document or OPT employment authorization.

Petitioners are strongly recommended to stay in touch with their petitioning employer during the extension period for updates on the petition processing.

What’s Next For Those Not Qualified For An Extension?

F-1 status students not qualified for a cap-gap extension will be required to leave the United States, particularly if their authorized stay period expires before October 1. After departing they need to apply for an H1B visa abroad at a consular post.

They need also seek to be readmitted into the US in H1B status for dates reflected on the approved petition – if applicable. Meanwhile, the cap-gap provision only applies to cap H1B petitions beneficiaries, not cap-exempt H1B petitions beneficiaries.

How to Know You Are Eligible for Cap Gap Extension?

Eligibility for cap-gap extension differs from individual to individual; the ideal thing is talking with your designated school officer about it. If your employer files a petition on your behalf, you should stay in contact to receive H-1B status updates. An F-1 student is eligible for an extension if:

Your prospective employer timely files the petition with the USCIS with October 1 as employment start date.
You maintain your F-1 status on the date your employer files the H1B petition on your behalf.
The USCIS receives the petition on time and gives you a receipt.
You are in an authorized post-completion OPT period on the date your prospective employer files your H1B petition.

How Can You Apply for the Cap-Gap Extension of F-1 Status?

Once your potential employer submits the H1B petition to the USCIS, the extension of F-1 status starts automatically. However, you will have to obtain a new cap gap I-20 as documentation of your extension; you can obtain a cap gap I-20 through these steps:

Update your important employment information relating to SEVP; you can check the SEVP portal. If necessary, submit a STEM OPT reporting form or an OPT authorization reporting form.
Depending on your H-1B status, gather all necessary documents for upload to the ISS cap gap I-20 request webform.

What If Your H1B Petition Is Rejected, Revoked, or Denied During the Cap-Gap Extension Time?

If your petition is denied or rejected within the cap-gap extension period or start date, you will have the standard 60-day grace period to leave the US. Before then, you will be provided with a rejection notice which you may need legal counsel to go further.

This statutory 60-day grace period doesn’t apply to students whose H1B petitions were denied due to fraud, H-1B status violation, or misrepresentation. Such students are ineligible for cap-gap extension and the statutory grace period.

Even if these occasions were discovered after a student’s petition has been approved, the approval will be revoked; the grace period doesn’t apply here, and the student will have to immediately leave the United States without being entitled to the 60-day grace period.

Students are required to leave the United States immediately in these instances stated for certain students. Employees of most employers are always advised to file a petition stating reasons why they want to continue employment or seek to re-enter by ensuring the right notices are timely filed.

With the recent rule published, such persons can also notify ISS of an actual need to remain within the 60-day grace period by submitting an updated form of their request in a timely manner.

Is It Possible to File for a STEM OPT Extension and H-1B At the Same Time?

You can file for the STEM OPT extension and H1B at the same time, but it may cause problems in your SEVIS record. If you plan on filing both petitions at the same time, submit your OPT STEM application before the 12-month EAD expires. If your H1B petition is approved, the STEM extension period ends on the date your H1B status becomes effective.

To avoid complications on your SEVIS record, ensure you update BIO regarding the denial or withdrawal of your H1B petition as soon as possible, and make the updated form available in a timely manner. A BIO adviser will be required to review your record in case there are corrections to be made before a final determination is done.

Meanwhile, include the STEM/H1B letter if no cap-gap appears on your form cap gap I-20 but your employer has filed the H1B petition.

How Can We Help You?

If you are struggling with understanding any aspect of H-1B petition including the gap, we understand how it feels. In our over 26 years handling immigration matters, we can say you are not alone. Instead of getting further stressed out with the whole process, why not contact Herman Legal Group today to help you?

We are experienced immigration attorneys who can help simplify the extension and application process. Contact us today via +1-216-696-6170 and schedule a consultation via Zoom, Facetime, or Skype. We are also available for in-office consultation. To schedule a personal consultation with Richard Herman, you can book online.

Conclusion

H1B OPT cap-gap extension is available to students on approved F-1 OPT or STEM OPT, or in their grace period with a pending or approved status change. Many petitions are rejected because of late filing, including 90 days before the end date of study or 60th day after completion.

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