What is “Cap-Gap”
“Cap-Gap” is the period of time between April 1st and October 1st when an F-1 student’s status and Optional Practical Training (OPT) work authorization has expired but their H-1B “Change of Status” petition is not yet effective.
The current regulations allow F-1 students with timely-filed, pending or approved H-1B petitions requesting Change of Status to H-1B on October 1st to remain in valid F-1 status with continued work authorization, if applicable, during this Cap-Gap period. H-1B petitions are considered timely-filed for purposes of Cap-Gap work authorization if the H-1B “Change of Status” petition was filed during the United States Citizenship and Immigration Services’ (USCIS) H-1B cap acceptance period, which typically begins April 1st. Additionally, the petition must be submitted during the validity period of the student’s F-1 status, which includes any period of time during the student’s course of study, any authorized periods of post-completion Optional Practical Training (OPT), and during the student's 60-day "grace period."
In order for a Cap-Gap extension to also extend a student’s grant of Optional Practical Training (OPT) employment authorization, the H-1B petition must have been filed while the student’s post-completion OPT was still valid. If an H-1B Change of Status petition is filed on the behalf of a student whose OPT has expired and who has thus entered the F-1 grace period, the student will receive the automatic extension of his or her F-1 status, but will not be employment-authorized during the Cap-Gap period of stay.
Once a timely-filed Change of Status H-1B petition has been filed, the automatic Cap-Gap extension will begin and will continue until the H-1B petition is adjudicated or rejected by USCIS. If the student’s H-1B petition is selected and approved, the student’s extension of F-1 status will continue through September 30. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected in the H-1B lottery, the student will have the standard 60-day grace period beginning from the date of the rejection notice or their program end date, whichever is later, to depart the United States or take other action to change their status as applicable.
Who do the “Cap-Gap” Rules Apply To?
Cap-Gap applies only to F-1 students with a "gap" in their status between the expiration of their OPT (or related grace period) and the start of the validity of their H-1B petition at the beginning of the relevant fiscal year, on October 1st (“Cap-Gap Students”).
Students who are still enrolled in school or who have OPT EADs valid through the end of the previous fiscal year on September 30th have no such “gap” and, thus, are not considered to be in a Cap-Gap period prior to commencing H-1B status. Such individuals may have the ability to travel internationally prior to commencing H-1B status, though such travel is not without risk and should be kept to a minimum. There can often be confusion at the Port of Entry (POE) if Customs and Border Protection (CBP) sees a pending or approved H-1B in their system, which can result in issues being readmitted in F-1 status. In order to minimize confusion and increase the likelihood of being properly readmitted in F-1 status, any students engaged in international travel prior to October 1st must (1) have a valid passport (2) have a valid I-20 endorsed for travel; (3) have a valid F-1 visa stamp; (4) have a valid OPT EAD card; (5) remain active in SEVIS and authorized for travel; and (6) maintain proof of ties to their home country.
Travel Issues for Cap-Gap Students
F-1 students who become eligible for Cap-Gap should be aware of the risks associated with international travel during this period. There are three main issues to be mindful of when considering travel during Cap-Gap. The first is that if a foreign national travels while an H-1B Change of Status petition filed on their behalf is pending, the Change of Status request will be considered abandoned as of the date they depart the U.S. While the underlying H-1B petition can still be approved, denial of the Change of Status request means that your F-1 status will no longer change to H-1B automatically on October 1st. Instead, you would be required to “Consular Process” your application by, in most cases, applying for an H-1B visa stamp at a U.S. Consulate outside the U.S., typically in your home country. Note that individuals who file an H-1B Change of Status during their F-1 Grace Period and who depart the U.S. will, in all instances, be unable to reenter the U.S. in F-1 status and will only be able to return on an H-1B visa no earlier than September 21, 2016.
The second is that during the Cap-Gap period, F-1 students will typically lack the documentation needed for readmission to the U.S., which must be presented at the POE to gain admission to the United States in F-1 status and to resume OPT employment. Specifically, F-1 students who become eligible for a Cap-Gap extension of their OPT receive only a newly-endorsed Form I-20 from their Designated School Official (“DSO”) as proof of continued employment authorization and do not receive a new EAD. Because a valid, unexpired OPT EAD is required in order to be readmitted to the U.S. in F-1 status, you will be unable to return to the United States following international travel under these facts.
The third issue that follows from this is that you will no longer be eligible for Cap-Gap work authorization and thus, will be required, in most instances, to remain outside the United States and apply for an H-1B visa stamp, which will permit reentry to the U.S. no earlier than September 21st and provide work authorization starting on October 1st.
The third issue that follows from this is that, if you are eligible for Cap-Gap employment authorization, you will no longer be eligible for Cap-Gap work authorization and thus, will be required, in most instances, to remain outside the United States and apply for an H-1B visa stamp, which will permit reentry to the U.S. no earlier than September 21st and provide work authorization starting on October 1st.
In cases where international travel cannot be avoided, you should be prepared to remain outside of the U.S. until you are able to apply for an H-1B visa stamp and return to the U.S. in H-1B status. Although procedures can vary by Consulate, State Department rules permit applications for H-1B visa stamps to be presented up to 90 days before the H-1B start date. Note, however, that you will not be permitted to enter the U.S. earlier than ten (10) days before your H-1B start date. Regardless of your entry date, you will only be authorized to begin work on your actual H-1B start date which would be no earlier than October 1st.
An individual’s ability to travel during Cap-Gap requires a case-specific determination and D&S recommends seeking individual legal advice to discuss the specifics of your case in advance of any international travel.