H-1B: Cap Gap Guidance

June 29, 2011

Mind the Gap.pngWhat is the H-1B cap gap?? F-1 students seeking first-time H-1B status are often in some period of OPT (optional practical training) when submitting an H-1B petition. "H1B Cap gap" is the term that USCIS refers to as an extension of either the F-1 student's status and/or the student's OPT period before October 1 of each year.

Here are some nuggets of useful information for students seeking clarification of how OPT can be properly utilized and extended with the H-1B cap gap:

  • If a cap gap H-1B applicant receives an H-1B denial at anytime (before or after October 1), s/he cannot continue working but is still allowed the 60-day grace period to depart the US as long as the H-1B was not denied or revoked due to fraud or misrepresentation

  • F-1 students whose OPT has already expired but are able to file an H-1B change of status petition during the 60-day grace period are allowed to remain in the United States under F-1 status but will not become employment authorized again

  • F-1 students who have STEM OPT employment authorization may apply for a a STEM OPT extension while he or she is within the cap-gap extension period.

  • If you have questions about how to apply for an H-1B petition and whether or not you can extend your OPT through the H-1B cap gap, give the business immigration attorneys a call at Law Offices of J Craig Fong. We can help you mind the gap! ---ecf