"Cap Gap" for F-1 with OPT
What is the "cap gap"
A new H-1b petition may be filed six months in advance of the start
date. The governmentís "year" begins on October 1st. Due to the
annual "cap" on H-1bs, on or after April 1st, employers file
for new H-1bs to begin working no earlier than October 1st. If
a studentís status or employment authorization ends between the time an
application is filed and October 1st, there will be a
"gap" in their work authorization, or in their status.
Regulation provide an automatic extension for F-1 students
working on Optional Practical Training (OPT) on whose behalf an H-1b
petition an application has been filed which requested a start date of
October 1st. The studentís authorized stay and their employment
authorization are extended until either October 1st, or until
the H-1b petition is denied - whichever comes first.
This extension is automatic for qualified students. No
additional application is required. It does not apply to J-1
Travel with expired EAD not advisable
F-1 student working with
cap gap authorization and with an expired EAD, cannot return to the U.S.
in F-1 status to continue employment.
If you are an F-1 student, and your EAD expires before October 1st, you
may remain in the US and continue working until October 1st if you qualify
for "cap gap" (see discussion above.) But if
you leave the U.S. - even with an I-20 which reflects your automatic
employment extension, you will not be permitted to return to the U.S. to
continue working through October 1st. If your H-1b petition is
approved, you may apply for an H-1b visa, and return after October 1st.
Travel before H-1b approved
If an H-1b petition is filed with a request for change of status, and
the beneficiary leaves before the petition is approved, the general rule
is that the part of the application asking for a change of status is
If the beneficiary leaves after the petition and change of status is
approved, there is a rule that the change of status becomes effective on
the indicated date if the beneficiary returns to the U.S. before that
date. (But see last paragraph for a warning in this regard.)
To return to the U.S. in F-1 status requires a valid unexpired
F-1 visa, an I-20 endorsed for travel, an unexpired passport, and a still
current EAD if the student is working. To return to the U.S.
as an H-1b requires an H-1b visa. The H-1b visa will not be valid
for entry into the United States more than 10 days before the start of the
H-1b petition. (This will be September 20, 2014 for petitions with a
start date of October 1, 2014.)
Consult our office before travel if you have any questions.
Whether it is critical to have the H-1b petition approved before travel
will depend on the expected return date, future travel plans, and the
validity and duration of your current status.
17 Month EAD Extension
This regulation was published to "address the immediate
competitive disadvantage faced by U.S. high tech industries" in
obtaining and retaining certain highly skilled workers.
An F-1 student completing their academic program, may apply for
"OPT" ("optional practical training") for up to one
year to gain experience in their field. The application is made based on
an endorsement by the DSO, and employment is authorized once the USCIS
approves the application and issues an "EAD" ("employment
Certain students may be eligible to apply to extend the
EAD for an additional 17 months.
The requirements relate to:
- the degree
- the employer
- cooperation from the DSO
- they type of job
Degree Requirements for 17 month extension
To be eligible for the 17 month extension, a studentís degree must be
in STEM field
eligible by ICE.
The classification of the degree is based on the degree program - not
merely the degree title. The CIP Code determines the program
eligibility and can be found on the I-20 Form at the top of page 3.
The current EAD must be authorized for a STEM eligible
program to obtain the STEM extension. For instance, the a student
has a bachelor's degree in a STEM eligible program, but is currently
working with an EAD issued after obtaining a master's degree in a program
which is not STEM eligible, they will not receive the 17 month extension.
To be eligible for the 17 month extension, the student must be working
for an employer enrolled in the E-Verify program. Only one percent
of employers are currently enrolled in E-Verify. Participating in E-Verify
requires an application by the company, and agreement to a
"Memorandum of Understanding." It involves an ongoing commitment
to utilize E-Verify to verify the status of EVERY new employee - not just
Most employers are not currently enrolled in E-Verify. There are costs
and burdens as well as benefits to this program beyond those related to
OPT extensions. Whether to enroll in E-Verify will be a business decision
for each employer and will be driven by many factors.
If a student applies for a 17 month extension, the employer must agree
to notify the studentís DSO within 48 hours should the studentís
To be eligible for the 17 month extension, a student must request that
their DSO recommend the extension. The DSO will verify the studentís
eligibility, certify that the studentís degree is on the STEM Designated
Degree Program List, and assure that the student and employer are aware of
their responsibilities for maintaining status..
The recommendation by the DSO is made through the online SEVIS
database. It requires an interface which as of this writing, is not
The student is required to report to the DSO every six months to verify
continued eligibility. The employer is required to report any termination
in employment. The DSO will enter these reports into SEVIS.
The student must also report to the DSO within 10 days, any change of
name, mailing or residential address, employer name and address, and
interruption or loss of employment. The DSO will update SEVIS with this
Type of Job
The employment must be in the area of the student's education (i.e.
STEM). Students with OPT are now expected to be employed to maintain
status. Students may not have more than 90 days cumulative of
unemployment during post-completion OPT. If they have been granted a
17 month extension, the cumulative time unemployed may not exceed 120
Travel after approval - an open question
- If a change of status to H-1b is approved before October 1, 2014
for a cap subject H-1b, the H-1b start date will be October 1st.
If an individual with F-1 status leaves the U.S. after approval and
returns before 10/1/2014, they will be admitted in F-1 status,
provided they have the appropriate F-1 unexpired visa stamp, a current
I-20 endorsed for travel, and an unexpired EAD. According to the
most current USCIS interpretation, their status will automatically
change to H-1b on October 1st.
- This may create a problem in that when they return they will
receive a new I-94 number which does not relate to the number
reflected on the H-1b change of status. We do not know how this
"automatic" change will show up when status is checked by Everify or
SAVE if it is necessary to complete a new I-9 form, or renew a
© 2008-2014 Jay I. Solomon, all rights reserved