Effective April 8, 2008, 8 CFR 214.2(f)(5)(vi), added as part of the interim final OPT rule, automatically extends duration of status and any post-completion OPT work authorization 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. To qualify for the H-1B cap-gap extensions under 8 CFR 214.2(f)(5)(vi):
- The student must be the beneficiary of an H-1B petition that:
- - has been timely filed by a cap-subject employer;
- - requests an employment start date of October 1 of the following fiscal year; and
- - requests a change of status
- The student must not have violated the terms or conditions of his or her F-1 status.
Petition must request a 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." 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.
What about F-1 students not on OPT?
The regulation automatically extends "duration of status, and any employment authorization granted under 8 CFR 274a12(c)(3)(i)(B) and (C)." These provisions refer to standard post-completion OPT and STEM OPT. If a student is not eligible for post-completion OPT, or the student's OPT expires before the H-1B petition is filed, the student would not be eligible for cap-gap employment authorization, but would be eligible for an extension of duration of status, as long as the petition is filed before the end of the student's grace period.
Other guidance from an April 17, 2008 conference call with SEVP and USCIS:
- Cap-gap eligibility is determined as of the date the I-129 petition and fee are received by USCIS, not the date that the receipt notice is issued.
- If a student was not in authorized OPT on the day the H-1B petition is filed, the student is not eligible for an extension of employment authorization. If the student was still in his or her 60-day grace period on the day the H-1B petition is filed, the student is eligible for an extension of status, but not of work authorization.
- A student who is the beneficiary of an H-1B petition filed by a cap exempt (higher education, etc.) employer is not eligible for cap-gap benefits on the basis of that petition. 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.
- Cap-gap benefits end when USCIS rejects, denies, or revokes the H-1B petition. However, the student would generally have a grace period after the termination.
- The limits on unemployment continue to apply to students with employment authorization while on a cap-gap extension.
According to SEVP's OPT Policy Guidance, "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.
- 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.
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's OPT Policy Guidance and the SEVIS Help Hub, the extension increments are as follows:
- A student who is the beneficiary of a properly filed H-1B petition will have his or her OPT extended to June 1
- A student who is the beneficiary of wait-listed H-1B petition will have his or her OPT extended to July 28
- A student who is the beneficiary of a receipted or approved H-1B petition will have his or her OPT extended to September 30, 2008
SEVP OPT Policy Guidance and the 24-month STEM OPT rule
Regarding its 2010 OPT Policy Guidance, the SEVP practical training web page states, "Please note: This SEVP OPT Policy Guidance remains in effect. However, after May 10, 2016, wherever the 17-month STEM extension information within that guidance contradicts the 24-month final rule then the final rule should be followed."