H-1B and OPT Cap-Gap Extensions

The H-1B

The H-1B status permits temporary employment (up to 6 years) in the U.S. for people who have a minimum of a Bachelor's degree in the same or a related field as the job offered. The employer must submit a petition to the U.S. Citizenship and Immigration Service (USCIS) for approval of the H-1B position. Petitions are approved on a first come, first served basis and there is a cap on how many H-1bs are issued per year. To find out more, see below and attend one of our H-1B Workshops.

The OPT Cap-Gap Extension

A cap-gap extension is a regulatory provision which extends an eligible F-1 student's status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to remain in the US during the "gap." 

Basics & Eligibility

What is the H-1B Cap?

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. Employers are allowed to file an H-1B petition up to 6 months before the new fiscal year (April 1) so as to join the queue of new applications waiting for the October 1 date. See the USCIS web site for the most current count of H-1B petitions filed.

*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 insitution: an insitution of higher education, a nonprofit entity related to or affiliated with an institution of higher education, a non profit reasearch 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.

Eligibility for the OPT Cap-Gap Extension

The cap-gap extension is available to students who, as of April 1st (the beginning of each fiscal year) were either on approved OPT or in their 60-day grace period and have a pending or approved change-of-status October 1st H-1B petition with the USCIS that was filed prior to the expiration of their OPT 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.

Apply for an OPT Cap-Gap Extension I-20

There are two types of cap-gap extensions:

  1. For H-1B petitions that have been filed and receipted
  2. For H-1B petitions that have been filed but not receipted

Petitions that have been filed and receipted: If your H-1B (change-of-status) petition has been filed by your employer and receipted by USCIS, you are eligible for an automatic cap-gap extension I-20 through September 30th. To request this cap-gap extension I-20, access the "H-1B Cap Gap Extension I-20 Request" 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

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: If your H-1B (change-of-status) petition has been filed by your employer but not receipted and your OPT expires before June 1 you are eligible for a preliminary cap-gap extension until June 1st. Once your petition is receipted, request an automatic cap-gap extension I-20 by following the steps above.

To request the preliminary cap-gap extension because your OPT expires before June 1, access the "H-1B Cap Gap Extension I-20 Request" 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 FedEx, UPS, or USPS Express/certified mail receipt and delivery confirmation showing your timely filed H-1B application to USCIS

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

How long will the OPT Cap-Gap Extension I-20 request take?

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.

What if my OPT expires before April 1st? Will the preliminary or automatic Cap-Gap Extension extend my OPT?

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.

Can I travel during a Cap-Gap Extension period and still return with my OPT I-20 and EAD?

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.

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 to U.S while a change of status application is pending is considered to have abandoned the application.

Problems & Issues

Cap-Gap not appearing in SEVIS System/Cap-Gap Data Fix

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.

What if my original OPT expires and my Cap-Gap Extension data fix is still pending with SEVIS Help Desk?

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.

What if my preliminary Cap Gap Extension until June 1 expires and my H-1B is not yet approved?

If your H-1B has not yet been accepted for processing and receipted, BIO cannot extend your Cap Gap OPT past June 1 unless you can provide proof that your H-1B application has been accepted and receipted. Otherwise, your OPT can only be extended if you qualify for and submit a timely filed OPT STEM Extension. If your H-1B is not approved by June 1 you must stop your employment, and you will have the standard 60-day grace period from the preliminary Cap Gap end date of June 1 depart the US, apply for an I-20 transfer, or to work with your employer regarding other Change of Status options.

What happens if my H-1B is rejected, withdrawn, or denied after applying for the Cap-Gap Extension?

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 US. In some cases it may be possible to apply for an I-20 transfer during the grace period, but this is not always available. However, if a denial is based on a discovered status violation, no such grace period exists and the student must leave the US immediately.

What if my regular Cap Gap Extension until Sept 30 expires and my H-1B is not yet approved?

If your H-1B has not yet been accepted for processing and receipted, BIO cannot extend your Cap Gap 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 US, 2) apply for an I-20 transfer, or 3) to work with your employer and immigration legal counsel regarding your current H1-B Change of Status and options to continue in the U.S.