H-1B Cap-Gap For F-1 Students


Practice Advisory


version
: May 22, 2008

Summary

Effective April 8, 2008, as part of the interim final OPT rule, duration of status and any post-completion OPT work authorization will be 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 of the following fiscal year. 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 has created 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 also responsible for requesting a data fix before printing the I-20.


To qualify for the H-1B cap-gap extensions [8 C.F.R. § 214.2(f)(5)(vi)]
  • The student must be the beneficiary of an H-1B petition that
    • has been timely filed;
    • that requests an employment start date of October 1 of the following fiscal year; and
    • that requests a change of status
     
  • The student must not have violated the terms or conditions of his or her F-1 status.
 

 
Conversion of consular processing requests to change of status

The regulatory wording is that the cap-gap extension benefits apply to F-1 students who are beneficiaries of "an H-1B petition and request for change of status." A strict reading of this wording would mean that beneficiaries of H-1B petitions that do not request change of status for the beneficiary (for example, requesting consular notification instead) are not eligible for the benefit. Since the cap-gap rule was published after the FY 09 H-1B filing season opened, however, many beneficiaries had applied for consular notification rather than change of status, following guidance applicable under the prior rule. To address this, USCIS developed a policy that allows the petitioning employer to convert "consular processing" petitions to "change of status," so that the beneficiary can benefit from the new cap-gap provision. Employers must make such requests within 30 days of the issuance of the petition receipt notice, by e-mailing the Service Center handling the petition.


 

 

Extract from the USCIS Notice

 

"To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice. Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS' website. Petitioners should e-mail their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H-1B petition adjudication. The requests should include the receipt number and both the petitioner's and beneficiary's name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number. Please do not contact the service center about requesting a change of status until after receiving the receipt notice.

E-mail addresses for requesting change of status are:

  • Vermont Service Center
    • Premium Processing cases: VSCPPCAPGAP.Vscppcapgap[at]dhs.gov
    • Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap[at]dhs.gov
     
  • California Service Center
    • Premium Processing cases: CSC.ppcapgap[at]dhs.gov
    • Non-Premium cases: CSC.nonppcapgap[at]dhs.gov
     

Note: If an F-1 student, who is the beneficiary of a selected 2009 H-1B petition, has a pending request to change to a status other than H-1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established regulations."


 

Per AILA liaison [AILA InfoNet Doc. No. 08042264 (posted Apr. 22, 2008)], USCIS confirmed that employers may use the same process to convert either pending or approved consular processing petitions to change of status.


 

 
What about F-1 students not on OPT?

The regulatory wording is that the benefit automatically extends "duration of status, and any employment authorization granted under 8 CFR 274a12(c)(3)(i)(B) and (C)." These provisions refer to post-completion optional practical training, both standard post-completion OPT and extended STEM OPT. It does not necessarily mean that only F-1 students who have that kind of OPT can apply for the cap-gap extension, but it does mean that only that kind of employment authorization will be extended. If a student is not eligible for post-completion OPT, this provision would extend the student's duration of status, but would not afford the student any work authorization until October 1 of the following fiscal year.


 

 
Other guidance

Other guidance from an April 17, 2008 conference call with 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

According to SEVP'sOPT Policy Guidance [item 9], "DSOs are not responsible for initiating any actions in connection with the cap gap extensions." However, according to SEVP they are responsible for the following, if a student requests it:
  • Printing out an I-20 showing the dates of cap-gap extension, if SEVIS contains that information. "SEVP is working to update SEVIS with the ability to print a Form I-20 showing the dates of continued F-1 status and employment authorization."
  • Requesting a datafix, if the student asks the DSO to have his or her SEVIS record corrected because SEVIS has not been properly updated by CLAIMS with the cap-gap extension information. To support a data fix, the student must provide the DSO with the following evidence:
    • 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.
     
  • Students on cap-gap extensions must continue to report all changes of name and address, and interruptions of employment, just like other students on OPT.

Screen-shot of SEVIS after a cap-gap data fix has been approved. Note that only the first two sentences will actually print out on the I-20.

 
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. According to SEVP'sOPT Policy Guidance [9.1.4], the extension increments are as follows for FY 2009 petitions that requested an October 1, 2008 start date. The dates of status extension referenced in the SEVP guidance include a 60-day grace period:

  • A student who is the beneficiary of a properly filed H-1B petition will have his or her OPT extended to June 2, 2008, and F-1 status extended to August 2, 2008
  • A student who is the beneficiary of wait-listed H-1B petition will have his or her OPT extended to July 28, 2008, and F-1 status extended to September 27, 2008
  • A student who is the beneficiary of a receipted or approved H-1B petition will have his or her OPT and F-1 status extended to September 30, 2008
  • A student whose H-1B petition is withdrawn or denied will have his or her OPT extension terminate 10 days after the date of the withdrawal or denial and their F-1 status extension will end 30 days after that. Termination of the automatic extension will not prematurely terminate a student's period of approved OPT, as shown on the student's employment authorization document or the student's original period of F-1 status.

The following table from SEVP's OPT Policy Guidance [9.1.1] shows the duration of the extensions granted for each phase in the H-1B petition adjudication process.


 

SEVP's Cap Gap Extension Length table