H-1B and OPT Cap-Gap Extensions

The H-1B is an employer-sponsored nonimmigrant classification which allows persons who are not citizens or permanent residents of the U.S. to work in a specialty occupation for up to six years with very limited exceptions. "Employer-sponsored" means that the employer must apply for the H-1B on behalf of the prospective H-1B employee through the United States Citizenship and Immigration Services (USCIS). "Specialty occupation" means a position that requires specialized knowledge and skills, and at least a bachelor's degree in that specialty. The H 1B also requires that the H-1B employer pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment. Since the procedures and record keeping required for the H-1B are complex, an attorney or other trained person will be necessary to complete the paperwork.

The H-1B cap is the limit on the number of H-1Bs allowed each fiscal year.* Currently, the cap is 65,000. The fiscal year begins on October 1 when a new batch of the 65,000 H-1Bs becomes available. 20,000 beneficiaries of H-1B petitions filed for new employment or for a change of employer are exempt from being counted against the H-1B cap if the beneficiary has earned a master's degree or higher from a U.S. institution of higher education. See the USCIS H-1B website for the more information.

*The cap does not apply to all H-1B visas. (The cap does not affect H-1B petitions at UC Berkeley.) An individual may be exempt to the H-1B cap if they are employed or have received an offer of employment at a qualifying institution: an institution of higher education, a nonprofit entity related to or affiliated with an institution of higher education, a non profit research organization or a government organization. Berkeley International Office cannot advise on an employer's cap status. Please check with your individual employer and their legal counsel.

H-1B Registration & H-1B Filing
Employers wanting to file a cap-subject H-1B petition must first submit registrations during the registration period (generally during March) , naming and paying a $10 registration fee for each individual they hope to file for. USCIS will then conduct a lottery of all registrations received, and notify employers which beneficiaries have been selected by March 31.  After notification, the employer will then have a 90-day period beginning April 1 in which to file a complete H-1B I-129 petitionAn employer may not file a cap-subject H-1B petition for any beneficiary whose registration was not selected in the registration lottery. For current timelines see the USCIS H-1B Electronic Registration Process website. The actual start date of these H-1B petitions will be October 1, which is the start of the H-1B fiscal year. 

The actual start date of these H-1B petitions will be October 1. This means that the H-1B status cannot become effective until October 1.

The Cap-Gap extension is available to students who, are either on approved F-1 OPT or STEM OPT or in their 60-day grace period and have a pending or approved change-of-status for an October 1st cap-subject H-1B petition with USCIS which was filed prior to the expiration of their OPT/STEM or 60-day grace period. For more informaiton, see the USCIS Cap Gap webpage.

What does it mean to have filed for an Oct. 1 Cap subject H-1B petition prior to the expiration of their OPT/STEM or 60-day grace period?
Please understand that the H-1B registration process is different than the H-1B Change of Status filing process! To qualify for the F-1 OPT Cap Gap Extension the employer must have submitted the Form I-129 requesting Change of Status and an employment start date of October 1, and that I-129 filing MUST BE RECIEVED by USCIS before the expiration of the OPT/STEM EAD or 60-day grace period. 

Those filing for H-1B via consular processing DO NOT qualify for the Cap-Gap Extension. You must confirm with your employer if the H-1B will be filed as a "Change-of Status" or via "Consular Processing." You may be eligible for one of two Cap-Gap extension benefits:

• If the employer filed your H-1B (change-of-status) petition and it is received by USCIS prior to your post-completion OPT expiration date, you qualify for an extension of your OPT employment authorization.
• If the employer filed your H-1B (change-of-status) petition and it is received by USCIS after your post-completion OPT expires but during your 60 day grace period following OPT, your F-1 status and permission to remain in the US are extended but you are not eligible to work.

Petitions that have been filed and receipted: If your H-1B (I-129 including change-of-status) petition has been filed by your employer and receipted by USCIS, you are automatically granted a Cap-Gap extension through September 30th. You can request an I-20 reflecting the cap-gap extension by submitting the "H-1B Cap-Gap Extension I-20 Request" form in your SSU Hub. You will be asked to upload the following:

• Your 12 Month EAD or STEM EAD card, if you haven't already
• a copy of the I-797 Receipt or Approval notice from USCIS  for the I-129 filing

You will indicate your preferred Delivery Method (Express Mail, USPS Airmail or Pick Up). This will take us about 5 business days to process.

Petitions that have been filed but NOT receipted:  Currently, SEVIS does not allow Cap-Gap Extensions for applications that have not been selected for processing and receipted.

Berkeley International Office will submit the Cap-Gap request to SEVIS within five (5) business days of the receipt of your request form in SSU Hub (see above), provided all information above is accurate and complete. Sometimes the Cap gap does not appear in the SEVIS record and Berkeley International Office must make a request to SEVIS to correct the record. This can cause delays in processing the request that are out of BIO's control. (See below in Problems and Issues.)

Page 2 of your I-20 will have 2 distinct changes:

• Under EMPLOYMENT AUTHORIZATIONS on page 2 of your I-20, your current OPT or STEM Extension will now have a  30 SEPTEMBER end date.
• Your I-20 will also include a special notation in the CHANGE OF STATUS/CAP-GAP EXTENSION section on page 2, showing details about your H-1B and H-1B receipt number and Comments stating "F-1 status and employment authorization for this student have been automatically extended to September 30, 2018. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR 214.2(f)(5)(iv) and 8 CFR 274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944). Additional information about the automatic extension can be found on the Student and Exchange Visitor Program Website at www.ice.gov/sevis."

Although your F-1 status would be extended if you are in your 60-day grace period when the petition is filed, your OPT employment authorization period has expired, and the Cap-Gap does not serve to reinstate or retroactively grant employment authorization. Your legal status to remain in the U.S. in F-1 status is extended, but you are required to stop working until your H-1B goes into effect on October 1st ( or at whatever date your Change of Status becomes effective). Consult with your BIO advisor and the legal counsel working on your H-1B application to determine your best strategy and if a Cap-Gap is really the right option for you.

Please note, traveling outside the US may interfere with the processing of your H-1B petition. Berkeley International Office strongly advises students to consult with their employers and the legal counsel processing the H-1B regarding all travel plans before departing the US. Berkeley International Office cannot advise directly on the impact of travel on your individual H-1B application. See the USCIS Cap Gap webpage for more information.

In general, during the Cap-Gap period, you can travel and re-enter the U.S. if:

1. You have a valid F-1 visa at the time of re-entry
2. You have an I-20 that reflects the Cap-Gap benefit and has a travel signature (no older than 6 months)
3. The H-1B petition filed on your behalf has been approved before you travel.

Per Department of Homeland Security policy, an applicant who departs the U.S while a change of status application is pending is considered to have abandoned the application.

Yes, but filing these applications concurrently can sometimes cause complications in your SEVIS record. You can apply for a STEM OPT Extension before your OPT EAD expires. If you are planning to file for an H-1B and STEM at the same time, you should submit your OPT STEM application on time, before the original 12 month EAD expires. 

You should also be mindful to take extra steps when filing for your STEM Extension and continuing your F-1 status:

• Before requesting a STEM I-20, check with your employer and the legal counsel working on your H-1B and confirm that your employer recommends that you file STEM/H-1B concurrently at this time.
• When submitting your STEM OPT Extension include the STEM/Cap-Gap Letter if a Cap-Gap appears on your OPT STEM I-20
• If no Cap-Gap currently appears on your I-20, but your employer has filed for the H-1B include the STEM/H1B Letter
• Update BIO as soon as possible regarding any Withdrawal or Denial of your H-1B petition. These actions may have an impact on your SEVIS record, and a BIO adviser will need to review the record to see if any corrections need to be made.
• If your H-1B is approved, the STEM Extension (or pending STEM Extension) will end on the date your H-1B becomes effective. Report the end of your OPT via the SSU Hub. Select "Report Early OPT/Academic Training Completion" and provide your I-797 Approval Notice From USCIS. Your F-1 record will be completed after the effective date of your H-1B.

Yes, you can apply for a STEM OPT Extension before your OPT EAD expires. If you are planning to file for an H-1B and STEM at the same time, you should submit your STEM OPT application on time, before the original 12 month EAD expires. 

You should also be mindful to take extra steps when filing for your STEM Extension and continuing your F-1 status:

• When submitting your STEM Extension include the STEM/Cap Gap Letter
• Update BIO as soon as possible regarding any Withdrawal or Denial of your H-1B petition. These actions may have an impact on your SEVIS record, and a BIO adviser will need to review the record to see if any corrections need to be made.
• If your H-1B is approved, the STEM Extension (or pending STEM Extension) will end on the date your H-1B becomes effective. Report the end of your OPT via the SSU Hub. Select "Report Early OPT/Academic Training Completion" and provide your I-797 Approval Notice From USCIS. Your F-1 record will be completed after the effective date of your H-1B.

Berkeley International Office DOES NOT advise submitting a STEM OPT Extension application after the expiration of your original 12 month OPT EAD, even if you have a Cap-Gap Extension on your I-20 which extends your OPT until Sept 30. 

USCIS states on its Cap Gap website website that "Students who are eligible for a cap-gap extension of post-completion OPT employment and F-1 status may apply for a STEM OPT extension during the cap-gap extension period. However, students may not apply for a STEM OPT extension once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day grace period."  However, BIO's current experience is that that STEM applications submitted after the end of the OPT EAD, but during the Cap-Gap period carry a very high risk of denial. Additionally, for those applications that are approved, if the H-1B is later denied, it could cause serious problems the STEM OPT Extension and F-1 SEVIS record. In most cases, the H-1B denial will result in the ending of the STEM Extension and F-1 SEVIS record.

Yes, STEM extension holders may qualify for the Cap-Gap Extension if they meet eligiblity requirements. See above for Cap-Gap Eligiblity.

You may not need a STEM extension if your OPT is ending and your H-1B has already been approved. If this is your situation, check with a BIO adviser before submitting your STEM request. An adviser will need to review your record and H-1B approval notice. An adviser will determine whether a STEM Extension or Cap-Gap I-20 is better for you.

Before contacting a BIO adviser, make sure that you have 1) uploaded a copy of your OPT EAD card to the SSU Hub and 2) have your H-1B I-797 Approval Notice From USCIS. 

If Berkeley International Office checks your SEVIS record and finds that Cap-Gap has not automatically been applied, then we will have to request a data fix from the SEVIS Help Desk. In these cases, we will have to submit a copy of your EAD card, your H-1B Receipt Notice or your H-1B Approval Notice. This will often cause a delay in the processing of your Cap-Gap I-20, and you will be notified if there is a delay of more than the 5 business day processing time.

Your post-completion OPT is automatically extended, whether you apply for the Cap-Gap extension I-20 or not. Therefore, you are allowed to continue working with your employer while the Cap-Gap extension data fix is pending. Also, keep in mind that the 90-day unemployment rule remains in effect during your automatically extended work authorization. During this time you must continue to update Berkeley International Office of any changes in your employment or address via our Student SEVIS Update (SSU) Hub form.

If the student's H-1B is not selected, or is withdrawn, denied, or revoked the student will have the standard 60-day grace period from the date of the rejection notice to prepare for and depart the U.S. In some cases it may be possible to apply for an I-20 transfer during the grace period, but this is often not available. However, if a denial is based on a discovered status violation, no such grace period exists and the student must leave the U.S. immediately. 

You are not eligible for the Cap Gap Extension if your employer is not cap-subject, or if your employer files for your H-1B via consular processing. If a Cap-Gap appears in your F-1 record and you are in one of these categories, please contact Berkeley International Office as soon as possible. An adviser will need to submit a request to SEVIS Helpdesk to remove the H-1B or Cap-Gap information from your F-1 record. If we are not able to remove the incorrect H-1B information from your record, your F-1 record may accidentally complete. 

Incorrect consular processing H-1B notations are quite common, as SEVIS sometimes has difficulty identifying whether the petition is a Change of Status H-1B or a consular processing petition.

If your H-1B has not yet been accepted for processing and receipted, BIO cannot extend your OPT past September 30 unless you can qualify for and submit a timely filed OPT STEM Extension. If your H-1B is not approved by Sept. 30, your F-1 employment authorization will end. You will then have the standard 60-day grace period from the Cap Gap end date of Sept 30 to 1) depart the U.S., 2) apply for an I-20 transfer, or 3) to work with your employer and immigration legal counsel regarding your current H-1B Change of Status and options to remain in the U.S.