The current H1B cap-filing season for fiscal year 2020 raises questions about extensions of F-1 student status and optional practical training (OPT) before the beginning of H1B status. Many foreign national students tend to have questions about coordinating H1B filings with the expiration of their F-1 status and OPT employment authorization. Important information about the operation of the so-called “cap-gap” extension of F-1 status and OPT follows.
USCIS Guidance
The U.S. Citizenship and Immigration Services (USCIS) provides helpful information regarding cap-gap in an article entitled Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations. This information, which was updated last in April 2018, provides USCIS guidance on transitioning from F-1 to H1B status.
Background: The Cap-Gap Rule
The cap-gap rule comes from a 2008 regulation issued by the U.S. Department of Homeland Security (DHS). It provides for automatic extensions of status for certain students to bridge the gap between the end of their student status, typically OPT, and the start of the next government fiscal year, on October 1st. Due to annual quotas on the number of H1B petitions, October 1st is the earliest date a cap-subject H1B worker may begin employment in H1B status. Many students’ F-1 status and OPT authorization, however, expire earlier in the summer due to the typical academic calendar. Under specific circumstances, the cap-gap rule extends student status and/or employment authorization. The rule and general considerations are summarized below.
Eligibility Under the Cap-Gap Rule
An F-1 student whose status expires (1) after the filing of an H1B petition requesting a change of status effective October 1, 2019, and (2) before the requested start date of October 1, 2019, receives an automatic extension of F-1 status. The student has a preliminary cap-gap extension, valid through June 1st, while waiting to see whether the H1B petition filed on her/his behalf is selected in the lottery. This extension is extended until September 30th if the H1B petition is accepted and remains pending or is approved.
If authorized for OPT as of the date of filing the H1B petition, the student beneficiary’s employment authorization is eligible for automatic extension through the entire cap-gap period. If the petition is denied, withdrawn, revoked, or rejected, however, the F-1 status and work authorization end. The student should be eligible for the standard 60-day grace period from the date of the triggering event or the academic program end date, whichever is later. If, however, the USCIS denies the change-of-status request based on a violation of student status, or denies or revokes the petition based on a discovery of fraud or misrepresentation, there is no grace period.
Actions Required of DSOs and F-1 Students
Once the H1B petition is filed, the student beneficiary should contact the designated school official (DSO) and provide evidence of filing, such as a copy of the petition and proof of mailing. The DSO then should issue a preliminary cap-gap form I-20 that extends the student’s status temporarily, until June 1st. If the student’s H1B petition is selected in the cap lottery, the student should return to the DSO to receive a new I-20 for the full cap-gap period once the USCIS issues a receipt notice (I-797). The full cap-gap authorization should be valid until September 30th. The preliminary and the final cap-gap I-20s may be used as evidence of status and employment authorization, if applicable.
Students May File for STEM Extension During Cap Gap
During the cap-gap period, the student beneficiary may also apply for the 24-month STEM extension, if otherwise eligible. If the H1B petition is withdrawn, revoked, or denied, and the student has entered the 60-day grace period, s/he is no longer eligible to apply for a STEM extension. More information about the 24-month STEM extension rule is available in the MurthyDotCom NewsBrief, 24-Month STEM OPT Effective from May 10, 2016 (08.Apr.2016).
When a SEVIS Data Fix is Required
“Data fix” is a term used to describe a request made by a DSO to the USCIS to correct a student’s SEVIS record. In some situations, it may be a useful tool to correct an action that otherwise could result in termination of student status. The USCIS provides cap-gap guidance with several examples of instances in which a student may want to consider contacting the DSO to request a data fix.
One common scenario is when an H1B petition is approved for change of status, effective October 1st, but the student no longer desires a status change on that date. Instead, the student wants to continue to use the unexpired OPT. In such a case, the petitioning employer should request to withdraw the approved petition before October 1st. Once the USCIS acknowledges withdrawal, the student should take the acknowledgement letter to the DSO and request that the SEVIS record be changed back to active student status. A data fix is no longer possible in this scenario, if the matter is not addressed before October 1st, when the student’s status automatically changes to H1B.
International Travel During Cap Gap
Many students inquire as to whether they may travel outside the United States during the cap-gap period between the academic program and the new H1B job. Students generally should not travel while the H1B petition and change-of-status request is still pending. The request will be considered abandoned and the student may have to remain outside the United States while the petition is adjudicated, and then apply for an H1B visa after approval.
Students whose H1B petitions and change-of-status requests are approved, however, may travel abroad and reenter the United States in F-1 status prior to October 1st. The student must also have an unexpired F-1 visa, along with proper I-20s showing approved cap-gap and endorsement for travel. More information regarding travel during cap-gap can be found in the MurthyDotCom NewsBrief, Students Should Not Travel during Cap-Gap Period (30.Jun.2016).
Conclusion
While the cap-gap rule may be deceptively simple, H1B petitioners and beneficiaries are encouraged to examine their specific circumstances to make sure that they achieve their desired objective of maintaining status and possibly employment authorization during the period prior to October 1st. When in doubt, it is recommended that any petitioning employer and individual beneficiary consult with a knowledgeable immigration attorney to develop the best possible course of action for the specific situation.
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