What is the H-1B “Cap Gap?”
It is a provision made law on April 8, 2008, which benefits F-1 students who are sponsored for an H-1B by cap-subject employers.
Most students are aware that the U.S. government makes a limited number of H-1B’s available each year, or in other words, they put a “cap” on the number available. For those working for cap-subject employers, the applications may be submitted as early as April 1 each year, and if approved do not become effective until the following October 1.
There are exceptions for certain employers who are not subject to the cap. These exceptions are called “cap exempt.” They include higher education, certain non-profits related to or affiliated with higher education, and certain non-profit or governmental research organizations. If an H-1B petition will be submitted for you by any such institution, then the “Cap Gap” does not apply to you and the rest of this packet is not relevant to your situation.
In the past, students who either graduated and/or were on OPT that ended before the H-1B became effective on October 1, might find themselves having to stop employment for several weeks or even months. Others actually had to leave the U.S. because there was more than 60 days between graduation or the end of OPT and October 1.
There now exists a way by which some F-1 students may be eligible to either (1) remain inside the U.S. waiting for the H-1B to become effective on October 1 and/or (2) continue existing employment until October 1.
Ultimately, please check with ISSS to verify that your situation really does qualify for the Cap Gap; do not make an assumption. And do not compare your situation to a friend’s or coworker’s; small differences may impact whether one person qualifies for the Cap Gap and another does not.
How do I qualify for the Cap Gap?
You as the student must meet the following criteria:
- must never have violated the terms of your F-1 status,
- your employer filed your H-1B petition in a timely way (i.e. during the H-1B filing period that begins April 1 each year, and while still maintaining F-1 status),
- your H-1B petition requests an employment start date of October 1, and
- the H-1B petition requests a change of status to H-1B (rather than “consular processing” which is not eligible for Cap Gap)
Who is not eligible for the Cap Gap?
You are not eligible for Cap Gap coverage if your H-1B petition is filed by:
- an institution of higher education
- a non-profit organization related to or affiliated with higher education
- a non-profit research or governmental research organization
This is because these employers can file an H-1B at any time, there are no limits to the number of H-1B’s available to them, and they also have the option to request premium (expedited) processing. You need to make sure you and your employer are thinking ahead and that the H-1B petition is filed well in advance of the end of your OPT. Once your OPT ends, you only have 60 days to remain inside the U.S. If your H-1B is not approved and effective by the end of those 60 days, you will be required to depart the U.S.
Do I get any documentation to show I am covered by the Cap Gap?
Yes, but only if you contact ISSS at email@example.com to request it. We do not receive automatic notification if someone on OPT is approved for H-1B status.
Will I be able to work during the Cap Gap?
Yes, if you meet the following criteria:
- you have never violated the terms of your F-1 status,
- your employer filed your H-1B petition in a timely way
- your H-1B petition requests an employment start date of October 1,
- the H-1B petition requests a change of status to H-1B (rather than “consular processing”),
- you are on valid OPT at the time the H-1B petition was received by USCIS (i.e. April 1), although it is OK if the OPT expires after the petition was received,
- your H-1B petition was accepted and an acceptance receipt issued, or your petition was approved by USCIS and an approval receipt issued, or you were informed you are on the wait list, or you are still waiting to hear, and
- you obtain an extended Cap Gap I-20, which you must show to your Cap Gap employer as proof you are eligible to continue the employment
If all of the above applies to you, you can keep working until the new end date on your updated I-20, unless your H-1B is not selected for receipting, is denied, withdrawn, or otherwise revoked. In this case your OPT Cap Gap employment must end within 10 days.
EAD’s (the OPT cards) are not issued or updated for the Cap Gap.
How long is my Cap Gap extension valid?
It depends on the status of your H-1B petition. Students who filed on time but are waiting to hear back, students who were selected for receipting, and students who were put on the wait list will all have different extension periods. ISSS will determine, based on information put in SEVIS by USCIS, what your Cap Gap extension end date will be. Normally, it follows this schedule:
- June 1 - applicants could automatically keep working until this date as long as the H-1B was filed on or soon after April 1, and a receipt notice issued, even if the OPT expired after the application was filed. To work longer than this, applicants must have met one of the next criteria:
- July 28 - applicants who were "waitlisted" - i.e. who were put on a waiting list for a final decision - are permitted to work until this date
- September 30 - applicants whose H-1B petitions were in pending status (received a receipt notice) and/or received an approval notice could continue working until this date, at which point the H-1B would take over on October 1.
How will I get an updated Cap Gap I-20?
ISSS as no way to know if you are waitlisted or receipted, so we cannot produce a new I-20 until you inform us. We will need the following documentation from you, sent to firstname.lastname@example.org(link sends e-mail) along with your student ID:
- if your OPT expires before your H-1B petition can be received by USCIS, then you are not eligible to continue working. However, if you were within the 60-day grace period following the end of OPT by the time your H-1B was received, then you can at least stay inside the US - without working - while waiting for a decision on your H-1B.
- if your OPT expires between the date your H-1B petition is RECEIVED by USCIS and May 31 - send ISSS a statement from your employer that an H-1B petition has been filed for you in a timely way, and proof of delivery to the USCIS showing date of receipt. Your I-20 will be extended through June 1.
- if you are waitlisted and your OPT expires before July 27 - send ISSS a copy of the wait list letter from USCIS. Your I-20 will be extended through July 28.
- if you are pending or approved and your OPT expires before September 30 - send ISSS a copy of the I-797 receipt notice and/or approval notice. Your I-20 will be extended through September 30.
- if your H-1B petition is denied and your OPT is expired, your employment must terminate immediately.
Must I be on OPT to get the Cap Gap coverage?
No. For example, if you graduate in May and do not apply for OPT, as long as you meet the Cap Gap eligibility criteria listed above, you are legally able to stay in the U.S. waiting for your H-1B to become effective on October 1. You just cannot be working during this period.
What if my OPT ended before my H-1B was filed?
Same answer. As long as your H-1B was filed on April 1, your H-1B was received within the 60 day grace period following your OPT, and you meet the other qualifying criteria, you are legally able to stay in the U.S. waiting for your H-1B to become effective on October 1. You just cannot be working during this period.
What if I learn my H-1B was rejected or denied?
You have 60 days to remain in the U.S. You must either depart the U.S. before the end of the 60-day period, transfer to begin a new degree program within 5 months, or change to another non-immigrant status.
How will the Cap Gap impact my driver’s license?
Unfortunately you probably will not be able to renew it, at least not until you receive the updated I-20 to cover the “gap.” Each state has different license issuance rules, but overall most will require you to show proof that you are legally able to stay during the Cap Gap period. That proof will be the updated I-20, and as mentioned above for students on OPT. ISSS is not able to intervene or write letters etc. to driver’s license departments; they will not accept such documentation as evidence of your continued legal status.
Can I travel outside the U.S. during the Cap Gap?
According to USCIS, no. If your OPT is expired and you are now covered by the Cap Gap, you should not leave the U.S. as you will not be permitted to re-enter in F-1 status. Instead you would have to apply for an H-1B visa at a consular post abroad, and would not be able to re-enter the U.S. until October 1.
Does unemployment matter during the Cap Gap?
Yes. If you were already on OPT, you are still restricted to a total of no more than 90 days unemployment (during initial 12-month OPT) or 120 days (12 month+17 month OPT extension).