Student FAQ’s on CAP GAP

FAQ for Students on CAP GAP

If you are a foreign student in the United States (“US”), you may wish to consider your options for staying back to work in the US or returning to your home country. As a student on an F-1 Visa, you would already be familiar with Optional Practical Training (“OPT”), which is an opportunity to apply knowledge gained in your degree program for work experience for a total of 12 months, which must be directly related to your major field of study.  Here are some frequently asked questions as to how a foreign student can continue to work in the US beyond his/her OPT period.

 

  1. How can I remain in the US to work beyond my OPT?
    Your employer may wish to file an H-1B petition on your behalf. The H-1B visa will confer temporary worker status on you. The H-1B visa is used to hire a foreign national professional in a specialty occupation (professional position), for a temporary period of time. The initial period granted is 3 years with an option to extend the visa for another 3 years up to a maximum of 6 years. The H-1B visa is subjected to a CAP each year.

 

  1. What does “CAP” refer to?
    Every fiscal year the US Citizenship and Immigration Services (“USCIS”) limits the number of H-1B visas issued to applicants from around the world. Currently, the cap is set at 65,000 visas. The fiscal year begins on October 1 each year.

 

  1. What is the CAP GAP?
    The time from when your F-1 visa status and work authorization expires through the start date of your employment in H-1B status is known as the CAP GAP. Regulation does not allow an employer to file a petition with the USCIS and the USCIS cannot approve an H-1B petition which is submitted more than 6 months in advance of the actual date for the need of the foreign worker. Since the fiscal year begins on October 1, the earliest date that an employer can file an H-1B petition each year is April 1.

 

  1. What is the CAP GAP Extension?
    The Department of Homeland Security in the US issued a publication allowing for automatic extension of F-1 status and if applicable, employment authorization of OPT, from April 1 to October 1 in the relevant year. This rule is intended to bridge the gap between the end of F-1 status and start of H-1B status and allow the student to remain in the US during the ‘gap’.
  2. Am I eligible for a CAP GAP extension?
    As a student in F-1 status, you will be eligible for a CAP GAP extension if:
    1. Your OPT authorization is still valid, or you are in your 60-day grace period following your OPT expiration; and
    2. Your employer files an H-1B petition for you on or after April 1.

 

If your OPT has expired at the time your employer submits your H-1B petition and you are in your 60 day grace period, your F-1 status is extended and you may remain in the US through the CAP GAP extension but you may not work. If your OPT remains valid beyond April 1, you can continue to stay in the US and continue to work till the H-1B ‘kicks-in’ on October 1 or the Approval Date (whichever occurs later).

 

  1. What if I have applied for a change of status from F-1 to H-1B but am not successful in the H-1B lottery or my petition is denied?
    If you are in valid OPT authorization at the time of your employers application for your H-1B but your H-1B application is not successful in the lottery, you are allowed to remain in the US till your employment authorization expires after which you have a 60 day grace period. If your H-1B petition is selected in the lottery but is subsequently denied, you can continue to remain in the US for a further 60 day grace period (from the date of the notification of the denial of the petition) to prepare for departing the US. However, if the denial of the H-1B petition is due to a discovered status violation, there is no such grace period and you must leave the US immediately.

 

  1. What if I do not qualify for a CAP GAP extension?
    As a student, if you do not qualify for a CAP GAP extension and your period of authorized stay (OPT + 60 days grace period) ends before April 1, then you are required to leave the US and apply for an H-1B visa from a consular post abroad. If successful, you may then re-enter the US on an H-1B visa.

 

  1. How do I apply for a CAP GAP extension?
    The extension of your F-1 status under the CAP GAP is automatic and begins when your employer submits the H-1B ‘change of status’ petition to USCIS. In order to obtain documentation of your F-1 status extension, please contact the international student’s office at your respective university for further information/instructions.

 

  1. Can I travel outside the US during my CAP GAP extension?
    If you are granted a CAP GAP extension and you elect to travel outside the United States during the CAP GAP extension period, you will not be able to return to the US in F-1 status. You will be required to apply for an H-1B visa at a consular post abroad prior to returning to the US.  You must be prepared to adjust your travel plans accordingly as the start date for the H-1B petition is October 1. It is not advisable for students to travel during the CAP GAP extension.

 

  1. What is a STEM extension?
    ‘STEM’ stands for science, technology, engineering and mathematics. The STEM extension refers to an additional 24-month period of OPT for those students who graduate with a STEM degree, over and above the 12-month OPT period granted to students. The STEM extension is only a one-time extension.  See here for STEM Extensions.