The 60-Day F-1 Grace Period and Adjudication or Revocation of Cap-Gap Petitions After October 1


There have been numerous reports that SEVIS records with cap-gap employment authorization:

  • Were automatically completed as of October 1, 2017, without the 60-day grace period of 8 CFR 214.2(f)(10)(ii)(D) having been applied, and
  • These records are not being corrected by SEVP thereafter

Whether or not the grace period applies can have important ramifications for a student's immigration options.

NAFSA has inquired with both SEVP and USCIS regarding their recent change in practice. See NAFSA's inquiry below.

Even if SEVP and USCIS agree to recognize the 60-day grace period following the natural end of cap-gap OPT on September 30, that grace period would only last until November 30. After the expiration of both OPT work authorization and any grace period, students must then also take into account USCIS' position in answer to the question, "What if I file for change of status on time but USCIS doesn't make a decision before my I-94 expires? (Short answer: USCIS says that although a COS applicant whose status has expired while the COS application is pending is no longer considered to be maintaining valid nonimmigrant status, USCIS usually exercises its discretion to approve such COS applications nunc pro tunc - See USCIS Customer Guide for Change of Status Applicants [Form M-577B (January, 2016)]).

In the meantime, students whose cap-gap H-1B petitions are denied after October 1, 2017, can consider consulting an immigration lawyer for advice on the continuity of their nonimmigrant status in this situation.

NAFSA Inquiry to USCIS and SEVP

Denial or Revocation of Cap-Gap Petitions After October 1

Cap-gap benefits (employment authorization and duration of status) are granted under 8 CFR 214.2(f)(5)(vi)(A) only through September 30. If the H-1B petition and change of status application on which the cap-gap benefit is based is not approved by October 1 (i.e., it is still pending with USCIS):

  • A student who only received an extension of duration of status under the cap-gap provision (i.e., who did not also receive an extension of employment authorization because he or she was not in a valid period of post-completion or STEM OPT at the time the qualifying H-1B petition was filed), the extension of duration of status is likely valid only through September 30, and as of October 1, the student is no longer within a period of F-1 "duration of status."
  • A student who received an extension of standard post-completion OPT or STEM OPT under the cap-gap provision, is authorized for employment only through September 30, and the student must stop working as of October 1 (with September 30 being the final day of employment), until the H-1B petition is approved. We believe that this student should also have the 60-day grace period provided for by 8 CFR 214.2(f)(10)(ii)(D).

Regarding this situation, SEVP stated in SEVP OPT Policy Guidance 1004-03 item 9.1.5.:

9.1.5. Can the cap gap extension of OPT be extended beyond September 30 if the H-1B petition filed on the student's behalf has not been adjudicated by USCIS?

No, pursuant to 8 CFR 214.2(f)(5)(vi)(A), the duration of status and any employment authorization granted under 8 CFR 274a.12(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 can only be extended until October 1.

If the H-1B petition is pending beyond October 1, a student can remain in the United States based on the pending change of status petition. However, a student with OPT employment authorization extended through the cap gap period must stop working until the H-1B petition is approved.

Although SEVP policy guidance states that "a student can remain in the United States based on the pending change of status petition," it is unclear from the guidance whether a student whose cap-gap employment authorization naturally expired on September 30 is entitled to the standard 60-day "grace period" under 8 CFR 214.2(f)(10)(ii)(D), which reads:

8 CFR 214.2(f)(10)(ii)(D): (D) Duration of status while on post-completion OPT. For a student with approved post-completion OPT, the duration of status is defined as the period beginning when the student's application for OPT was properly filed and pending approval, including the authorized period of post-completion OPT, and ending 60 days after the OPT employment authorization expires (allowing the student to prepare for departure, change educational levels at the same school, or transfer in accordance with paragraph (f)(8) of this section.)

The USCIS cap-gap webpage also states in general:

"Once a timely filing requesting a change of status to H-1B on October 1 has been made, the automatic Cap-Gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student's H-1B petition is selected and approved, the student's extension of status will continue through September 30. If the student's H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States."

Even though the USCIS guidance does not specifically address the circumstance of a denial coming on or after October 1, 8 CFR 214.2(f)(10)(ii)(D) is broadly worded, and we believe that it should be construed to mean that although a student's cap-gap work authorization expires on September 30, the student should still receive the "standard" 60-day grace period that any other F-1 student would be entitled to after his or her post-completion OPT ends. The logic of this argument is:

  • The cap-gap regulation at 8 CFR 214.2(f)(5)(vi) extends "duration of status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) and (C)."
  • Since paragraphs (B) and (C) refer to standard post-completion OPT and STEM OPT respectively, the cap-gap extension of employment authorization should also be seen as part of the student's "authorized period of post-completion practical training" under 8 CFR 214.2(f)(10)(ii)(D).
  • Since a student granted an extension of practical training work authorization under 8 CFR 214.2(f)(5)(vi) is within an "authorized period of post-completion practical training" under 8 CFR 214.2(f)(10)(ii)(D), such a student should also benefit from that provision's 60-day grace period from October 1 – November 30.
  • During that October 1 – November 30 grace period, the student should be permitted to take any action normally permitted during the grace period following post-completion OPT, such as: process a change of level, transfer to a new school, apply for a change to another nonimmigrant status, or simply make preparations to leave.