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What You Need to Know about This Years’ Cap-Gap and H-1B Cap Petitions Pending Adjudication

by | Apr 12, 2024 | FAQ, Immigration, Students/CPT/OPT/STEM

What is the Cap-Gap and its benefits?

The Cap-Gap extends an eligible F-1 student’s status to bridge the gap between the end of F-1 Optional Practical Training (OPT or STEM) and the start of H-1B cap status (typically Oct. 1).  This allows the F-1 student to remain in the U.S. during the “gap” period. 

The cap-gap benefit is available to F-1 students who, as of April 1, were on OPT or STEM or in their 60-day grace period and their employers have timely filed an H-1B petition requesting a change of status. 

Depending on the F-1 student’s situation, the Cap-Gap confers one of the following benefits: 

  1. Extension of Status and Work Authorization to Sept. 30,  if the H-1B cap petition is filed before the F-1 OPT or STEM EAD end date with a change of status request or 
  2. Extension of F-1  status only (i.e. allowed to remain in the U.S.) but not work authorized, if the H-1B cap petition can’t be filed before the F-1 student’s OPT or STEM EAD end date has expired but it is filed during the 60-day grace period.

Who is eligible for the cap-gap extension?

To qualify, the F-1 student must be the beneficiary of an H-1B petition that:

  • Has been timely filed (within the 90 days acceptance period).
  • Requests an employment start date of Oct. 1 or thereafter and
  • Requests a change of status (rather than consular processing).

Note that the H-1B Registration Selection Notice does not qualify an F-1 student for a cap-gap extension.  An F-1 student can benefit from the cap-gap extension only after the H-1B petition is filed.  Thus, timing is very important for this benefit.  

How does an employer update the Form I-9 to reflect cap-gap? 

All employers must keep and maintain Form I-9 for F-1 students to remain in compliance and avoid penalties. Below is a sample Form I-9 with the cap-gap verification. 

How does the F-1 student obtain an updated I-20? 

The F-1 student should  keep his/her DSO updated about his/her H1-B cap registration selection and also after the H-1B cap filing so that the DSO can issue an updated I-20 as applicable.  Typically, 2-3 weeks after USCIS issues the H-1B receipt notice or approval notice, the student may request an updated Cap-Gap I-20.

How long does it take USCIS to issue receipt notices for H-1B cap petitions?  

USCIS is typically slower than usual issuing these receipt notices because of the volume of petitions filed.   It might take two to three weeks or more for receipt notices to be issued after USCIS accepts the filing. 

Does the F-1 student need to keep their DSO (designated school official) advisor updated during this period?

We recommend that F-1 students in the cap-gap period stay in contact with their DSOs during this period and update them on their H-1B processing status. 

What happens if the H-1B cap petition is not adjudicated by September 30?

The cap-gap employment authorization benefit ends September 30.  The H-1B candidate can be lawfully present in the U.S. after September 30, but can’t work.   Premium processing can be considered in early 

September, if the H-1B cap still pending adjudication and work authorization is needed.   In some instances, the F-1 student might have STEM OPT EAD coverage and can continue to work. 

Can the F-1 student travel abroad while the H-1B cap petition is pending?

We recommend that F-1 students do not travel abroad while the H-1B cap petition is pending because a petition requesting change of status will be considered abandoned if the H-1B candidate travels abroad. 

I received a notice that USCIS transferred our H-1B cap petition to another Service Center.  What does that mean? 

Transfer of cases between Service Centers is not uncommon.  It is typically done to balance the adjudication workload.

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Updated April 12, 2024. Updated June 9, 2020. Originally Published Oct 1, 2018.



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