Complete Guide to the Cap Gap Extension 

 October 1, 2022

By  Chuky Ofoegbu

Cap Gap Extension for international students

What is the Cap Gap Extension?

The Cap Gap Extension is an extension of the work authorization given to F-1 international students who are currently on post-completion OPT/STEM OPT at the time an H-1B cap-subject petition is filed on their behalf, by a sponsoring US employer.

The Cap Gap Extension is sometimes called OPT Cap-Gap, F-1 Cap Gap or H-1B Cap Gap.

The word "cap" in "Cap Gap" comes from the H-1B cap-subject visa. This type of H-1B visa has an annual limit of 85,000. 

While the word "gap" in "Cap Gap" comes from the gap in employment and authorized stay that could occur when the F-1 student's OPT/STEM OPT authorization expires before an approved H-1B change of status goes into effect. 

This gap in employment and authorized stay usually occurs during the calendar period between April 1st (when the new window to file an H-1B cap-subject petition opens) to October 1st (when beneficiaries of approved H-1B petitions can change into the H-1B status).

Why the Cap Gap Extension was created

Prior to 2008, F-1 students on post-completion OPT/STEM OPT who were beneficiaries of a pending H-1B cap-subject petition with USCIS, would have to stop working once their OPT/STEM OPT work authorization ended, and must depart the United States within the 60-day grace period

This gap resulted in an unnecessary disruption to the U.S. employer filing the H-1B petition and brought undue hardship to the F-1 student, who would have to depart the United States and return when the H-1B petition is approved and the change of status date is reached.

To resolve this cap gap problem, the Department of Homeland Security implemented a federal rule applicable to F-1 students with pending H-1B petitions, that covered any gaps in employment and work authorization that could occur from the date of expiration of the post-completion OPT/STEM OPT Employment Authorization Document (EAD) to the effective date of the H-1B fiscal year starting on October 1st.

This rule is known today as the Cap-Gap Extension. 

Who is eligible for the Cap Gap Extension?

To be eligible for the extension, an F-1 student on OPT/STEM OPT must meet ALL of the following

  1.  Be a beneficiary of a pending H-1B cap-subject petition for a change status beginning on October 1st 
  2.  The H-1B cap-subject petition must be filed before the OPT/STEM OPT EAD expires

Who is NOT eligible for the Cap Gap

  1. F-1 student's who do not satisfy all the eligibility requirements above
  2. F-1 student's on OPT/STEM OPT who are beneficiaries of a pending H-1B cap-exempt petition, which is commonly filed by U.S. universities, non-profit organizations and U.S. government research laboratories. 
  3. F-1 students whose employers filed an H-1B petition for consular processing. These F-1 student beneficiaries must depart the United States within the 60 day grace period following their OPT/STEM OPT end date. 

Scenarios for Eligibility

Scenario A: An employer files a cap-subject H-1B petition with USCIS on May 10, 2021, on behalf of an F-1 student on OPT that ends on June 1, 2021...

This F-1 student can continue working for the employer beyond June 1, 2021 until decision is made by USCIS on the H-1B petition. 

Scenario B: An employer files a cap-subject H-1B petition with USCIS on May 30, 2021, on behalf of an F-1 student on STEM-OPT that ends on May 20, 2021.

In this case, the F-1 student would have already entered the 60-day grace period starting on May 21, 2021 and does not meet the eligibility for the Cap Gap Extension. 

This F-1 student may remain in the U.S. while the H-1B petition is pending. 

However, they can't continue working for the employer until the H-1B petition is approved and they change into the H-1B status as early as October 1, 2021.

H-1B electronic registrations and Cap Gap Extension

Starting in the H-1B fiscal year of 2021, USCIS implemented a system that required U.S. employers to first submit electronic registrations before they could file a cap-subject H-1B petition.

This submission window opens early in March of every calendar year, for a period of 14 calendar days.

Once the electronic submission closes, USCIS then enters these electronic registrations into a random selection lottery and notifies employers of the outcome of this lottery selection no later than March 31. 

Only employers with applications selected during this lottery can move forward with submitting a cap-subject H-1B petition, starting on April 1st.

Note that a submission of an electronic registration at this stage does not qualify an F-1 student for the cap gap extension. 

Do I need to apply for Cap Gap Extension if I am eligible?

Unlike the work authorization for the OPT and the 24-month STEM OPT extension that must be obtained by filing an I-765 Employment Authorization Application with USCIS, the cap-gap extension is automatic for eligible F-1 students.

F-2 dependents on Cap Gap

Given that the immigration status of dependent spouses and children in an F-2 status are tied to those of the primary F-1 student, F-2 dependents are allowed to remain in the United States if the F-1 student is eligible for the cap-gap extension. 

Traveling during Cap Gap Extension

Traveling outside the United States is strongly discouraged when an F-1 student has a pending H-1B petition with USCIS. 

This is because departing the United States while the H-1B petition is pending causes USCIS to consider the H-1B change of status petition as abandoned. 

If an F-1 student must travel outside the U.S., it is important to consult with an experienced immigration attorney for the best guidance.

What happens if my H1B Petition is rejected, denied or withdrawn during my Cap Gap

If the H-1B petition is rejected by USCIS or withdrawn by your employer during the cap-gap period, you will immediately enter the 60-day grace period and must prepare for departure from the U.S. 

Changing from Cap Gap Extension to STEM OPT

Eligible F-1 students can apply for the STEM OPT Extension during the Cap Gap extension...

However, if the Cap Gap Extension is terminated - from a rejection, denial, or withdrawal - the STEM OPT application will be denied. 

What if my H-1B Petition is pending beyond September 30

The Cap Gap Extension only covers gaps in employment up to September 30 of the calendar year. 

If an F-1 student has a pending H-1B petition beyond September 30, the student enters the 60-day grace period and must stop working with the employer. 

During this grace period, the F-1 student may prepare to depart the United States, or change into another nonimmigrant status if eligible. 

Requesting an I-20 endorsed for Cap Gap Extension

An F-1 student may request a proof of work authorization for Cap Gap Extension in the form of an updated Form I-20 from the Designated School Official. 

But this is not required for an F-1 student to continue working with their employer. 

This updated Form I-20 will show an extension of the OPT or STEM OPT period as shown on page 2. 

The section for cap gap extension on page 2 of the Form I-20 will be updatd with the comment

The section for cap gap extension on page 2 of the Form I-20 will be updated with the comment "F-1 status and employment authorization for this student have been automatically extended to September 30, 2021. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR 214.2(f)(5)(iv) and 8 CFR 274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944). Additional information about the automatic extension can be found on the Student and Exchange Visitor Program Website at www.ice.gov/sevis.

To obtain this updated Form I-20, you will need to show evidence of a timely-filed H-1B petition, such as a copy of the H-1B petition filed by your employer and a mailing receipt...

You can also show an I-797 receipt notice showing that your H-1B petition was accepted.

OPT unemployment limit during Cap Gap

While on the Cap Gap Extension, an F-1 student must not exceed the 90 days of OPT or the cumulative 150 days if on the STEM OPT extension.

Chuky Ofoegbu

With almost a decade of experience pursuing higher education in the United States, I fully understand the pain points foreign students endure. I created this website to help foreign students successfully navigate their way through the challenges they will face while living in the United States.

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