Practice Advisory: H-1B Cap-Gap For F-1 Students 2010

April 28, 2010

 

Duration of status and any post-completion OPT work authorization is automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1, 2010. This applies to all qualified students on OPT, not just STEM students. Since the regulation states that cap-gap extensions are terminated if the H-1B petition is rejected, denied, or revoked, DHS creates a graduated extension scheme, which will grant extensions of OPT and of F-1 status depending on the situation of the underlying H-1B petition. DSOs are not responsible for initiating any actions in connection with the cap-gap extensions, but if a student asks for an updated I-20 showing the extension dates, the DSO is responsible for printing the I-20. If the SEVIS record has not been automatically updated to reflect the extension, the DSO is responsible for using the Cap-Gap Extension function to update SEVIS, and to print an updated I-20.

To qualify for a FY 2011 H-1B cap-gap extension:

  • The student must be the beneficiary of an H-1B petition that
    • has been timely filed;
    • requests an employment start date of October 1, 2010; and
    • requests a change of status
     
  • The student must not have violated the terms or conditions of his or her F-1 status.

The Regulatory Wording

214.2(f)(5)(vi)
Extension of duration of status and grant of employment authorization.

(A) The duration of status, and any employment authorization granted under 8 CFR 274a12(c)(3)(i)(B) and (C), of an F-1 student who is the beneficiary of an H-1B petition and request for change of status shall be automatically extended until October 1 of the fiscal year for which such H-1B visa is being requested where such petition:

(1) has been timely filed; and

(2) states that the employment start date for the F-1 student is October 1 of the following fiscal year.

(B) The automatic extension of an F-1 student's duration of status and employment authorization under paragraph (A) shall immediately terminate upon the rejection, denial, or revocation of the H-1B petition filed on such F-1 student's behalf.

(C) In order to obtain the automatic extension of stay and employment authorization under paragraph (A), the F-1 student according to 8 CFR part 248, must not have violated the terms or conditions of his or her nonimmigrant status.

(D) An automatic extension of an F-1 student's duration of status under paragraph (A) also applies to the duration of status of any F-2 dependent aliens.

Extensions of Duration of Status and Work Authorization, or Just Duration of Status

The cap-gap benefit is an automatic extension of "duration of status, and any employment authorization granted under 8 CFR 274a12(c)(3)(i)(B) and (C)."

These provisions refer to both post-completion OPT and extended STEM OPT.

For employment authorization to be extended during the cap-gap, the student has to have an approved period of post-completion or STEM OPT with a future OPT end date. That is, the OPT end date must be after the date H-1B petition was filed.

A student who does not have post-completion OPT or STEM OPT, or whose post-completion OPT or STEM OPT has expired before the H-1B petition was filed, will have his or her duration of status extended, but will not have cap-gap work authorization.

Other Guidance

Other guidance from SEVP and USCIS:

  • The cap-gap extension of status and work authorization officially commences on the date the I-129 petition and fee are received by the Service Center, not the date that the receipt notice was issued.
  • If a student was not in authorized OPT on the eligibility date, he or she is not eligible for an extension of employment authorization. If the student was still in his or her 60-day grace period, the student is eligible for an extension of status, but not of work authorization.
  • For a student who is the beneficiary of an H-1B petition filed by a cap exempt (higher education, etc.) employer, USCIS will likely not recognize that s/he is eligible for the extension of status and work authorization under the cap-gap provision of this rule. The rationale is that a cap exempt employer can choose a start date that matches the end of authorized F-1 status or work authorization. USCIS and SEVP are consulting with counsel.
  • The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. However, the student would have a grace period after the termination during which s/he is authorized to remain in the United States for up to 60 days to prepare for departure from the U.S., change degree level, transfer, change status, etc. as long as the student has not otherwise violated status.
  • The limits on unemployment continue to apply to students with employment authorization while on a cap-gap extension.

DSO Duties

DSOs should respond to a student's request to provide an I-20 that contains cap-gap notations. If CLAIMS has automatically updated SEVIS with H-1B receipt information, the DSO need only print a new Form I-20, which will print out with cap-gap notations. If SEVIS has not been automatically updated (as will be the case until USCIS finishes the H-1B selection process), the DSO should respond to a student's request for an updated Form I-20 by using the new Cap-Gap Extension function in SEVIS, and then printing out an I-20 that contains the cap-gap notation.

The SEVIS SEVIS RTI User Manual and SEVP's SEVIS 6.0 Training Slides state that a "student must be able to provide proof that the petition has been filed" and so DSOs should request the student to provide such proof prior to using the Cap-Gap Extension function.

For the FY 2009 season, SEVP had recommended that students provide the following evidence to support a cap-gap data fix request, and similar documentation might be requested to support use of the Cap-Gap Extension function:

  • For a properly filed H-1B petition: A statement from the employer that the student is the beneficiary listed on a properly filed H-1B petition and proof of delivery to a USCIS Service Center showing the date of receipt.
  • For a wait-listed H-1B petition: A copy of the wait list letter from USCIS to the employer
  • For a receipted or approved H-1B petition: A copy of the Form I-797 and/or the I-797 receipt number.

Cap-gap Extension Length

Since the cap-gap extensions are terminated if the H-1B petition is rejected, denied, or revoked, DHS has created a graduated extension scheme, which will grant extensions of OPT and of F-1 status depending on situation of the underlying H-1B petition.

A USCIS Q&A and SEVP's SEVP OPT policy guidance show the FY 2011 timeframes for cap-gap extensions of status and OPT for F-1 students applying for change of status to H-1B. SEVP also has a Fact Sheet for employers, to explain the automatic H-1B cap-gap extension, noting there is no new EAD to cover the period, but that the student may have a cap-gap I-20 as proof of the automatic extension.

  • Qualifying H-1B petition properly filed but not yet receipted by USCIS: Preliminary extension of OPT to June 1, 2010, and extension of F-1 status to August 2, 2010. Note: Using the SEVIS Cap-Gap functionality for cases that have been filed but not yet receipted by USCIS should only be done if a student's OPT ends after June 1. OPT will be shortened to June 1 if that functionality is used on a record of a student whose OPT extends beyond June 1. (see April 26, 2010 SEVIS broadcast message)
  • Waitlisted petitions: SEVP guidance states that "There will not be a waitlist utilized as a part of the FY 2011 H1B Cap filing process."
  • H-1B petition receipted by USCIS (i.e., it has been selected by USCIS), or approved by USCIS: OPT extended to September 30, 2010, and the student's SEVIS record completes on September 30, 2010.
  • A student whose H-1B petition is withdrawn or denied will have a standard 60-day grace period from the date of notification of the denial, rejection, or revocation of the petition. This grace period will not apply, though, to cases denied due to discovery of a status violation, or to cases revoked based on a finding of fraud or misrespresentation.