April 1, 2009

Automatic Extensions Help F-1 and OPT Students Bridge the Cap-Gap

Many F-1 students who are the beneficiaries of an H-1B petition often have their F-1 status expire before their H-1B status begins on October 1. The time between the expiration of their F-1 status and the beginning of their H-1B status is know as “Cap-Gap.” In the past, students with a Cap-Gap were required to leave the United States, sometimes for many months, until their H-1B status began. However, on April 8, 2008 the Department of Homeland Security (DHS) published an Interim Final Rule titled “Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions” (Rule). Pursuant to the Rule, students with pending or approved H-1B petitions are allowed to remain in F-1 status during the period of time where their F-1 student status and work authorization would have otherwise expired, and remain in their F-1 student status up to the start of their approved H-1B employment period. The student’s F-1 status and employment authorization are automatically extended when the H-1B petition and change of status timely filed. Accordingly, a student does not need to file an application for the Cap-Gap extension or receive a new EAD to cover the additional time. However, the student may need to submit an I-797 receipt or approval notice, provided by the employer, in order to obtain an updated I-20 as proof of the extension. It should be noted that the updated Form I-20 is not required for a student to continue working and that the student may continue to work while his updated I-20 is being processed.

The Cap-Gap extension is terminated upon the rejection, denial, or revocation of the H-1B petition filed on the F-1 student's behalf.