"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 government’s "year" begins on October 1^st. Due to the annual "cap" on H-1bs, on or after April 1^st, employers file for new H-1bs to begin working no earlier than October 1^st. If a student’s status or employment authorization ends between the time an application is filed and October 1^st, 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 1^st. The student’s authorized stay and their employment authorization are extended until either October 1^st, 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 students.

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 abandoned.

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 authorization document").

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 student’s degree must be in STEM field designated as 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.

Employer Requirements

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 F-1 students.

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 student’s DSO within 48 hours should the student’s employment end.

DSO role

To be eligible for the 17 month extension, a student must request that their DSO recommend the extension. The DSO will verify the student’s eligibility, certify that the student’s 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 available.

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 information.

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 days.

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 driver's license.