Attorney Huh's Immigration Blog

published by NY/NJ Immigration Lawyer Seoyoun Huh

F-1/H-1B Cap-Gap

Posted on | June 13, 2010 | Comments Off

What is the H-1B cap?

The cap is the congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. Currently, the cap is 65,000, with certain statutory cap exemptions.

What is the F-1/H-1B “cap-gap” and how does it occur?

The earliest date that an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change-of-status request are approved, the earliest date that the student may start the approved H-1B employment is October 1.

Cap-gap occurs when an F-1 student’s status and work authorization expire in the current fiscal year before they can start their approved H-1B employment in the next fiscal year beginning on October 1.

Consequently, without special rule, F-1 students whose H-1B petitions were approved but whose OPT and the subsequent 60-day grace period expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status.

What is the cap-gap regulation?

Under the cap-gap regulations, the F-1 status of students is automatically extended when the H-1B petition for the next fiscal year (with an October 1 employment start date) was filed on his behalf during the period in which H-1B petitions are accepted for that fiscal year. The H-1B petition should be filed during the student’s authorized duration of status (D/S) admission was still in effect. The D/S admission includes the academic course of study, any authorized periods of post-completion OPT, and the 60-day “grace period.”

A Form I-797, Notice of Action, with a valid receipt number, is evidence that the petition was filed and accepted.

The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition.

What if the post-completion OPT expired before April 1?

A student who completed his post-completion OPT and who subsequently was in a valid grace period on April 1, would benefit from an automatic extension of his or her D/S admission, if the H-1B petition was filed during the H-1B acceptance period, which began on April 1. The employment authorization, however, would not be extended automatically, because it already expired and the cap gap does not serve to reinstate or retroactively grant employment authorization.

Is a student who becomes eligible for an automatic extension of status but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

Yes. If USCIS denies, rejects, or revokes an H-1B petition, the student will have the standard 60-day grace period (from notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States. 73 FR 18944, 18949 (April 8, 2008).

The 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation. Such a student in any event is not eligible for the automatic cap gap extension. Similarly, the 60-day grace period would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

May students travel outside the United States during a cap gap extension period and return in F-1 status?

No. If the student elects to travel outside the United States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning.

Do the limits on unemployment time apply to students with a cap gap extension?

Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap gap extension.

USCIS, May 23, 2008


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Attorney Profile

Seoyoun Huh
(201) 468-0201

Ewha Womans University (B.H.E & B.B.A)
University of Wisconsin Law School (J.D.)

Admitted to Bar:
New York, New Jersey, Wisconsin