Students Studying in The United States H-1B and the Cap-Gap Extension

The H-1B is temporary employment authorization that is used for nonimmigrant individuals in a specialty occupation. In order to become eligible for H-1B status, an employer must sponsor an individual and submit a petition to the United States Citizenship and Immigration Services (USCIS).

Each year, the U.S. Department of Homeland Security (DHS) has a limit (cap) of 65,000 new H-1B visas for individuals with a bachelor’s degree or higher being sponsored by a cap-subject employer. 20,000 additional H-1Bs are reserved for individuals with a master’s degree or higher earned at a U.S. college or university. Some H-1B visas are not cap-subject, including but not limited to those employed at institutions of higher education, nonprofit research organizations, or government research organizations. H-1B visas are adjudicated through a randomized system and begin on October 1 for cap-subject employers.

You can learn more about the H-1B Cap Season here.

The Cap–Gap Extension is an automatic extension of F-1 status that may be granted to F-1 students who need to “bridge the gap” between the expiration of their OPT/STEM EAD and the start date of their approved H-1B sponsored by a cap-subject employer.

Because new H-1Bs become effective on October 1 of each year, the Cap-Gap Extension allows eligible F-1 students to remain in the U.S. between the expiration of their OPT/STEM Extension and the start of their H-1B.  

You can learn more about H-1B status and the Cap-Gap Extension here.

As an F-1 student, you may be eligible for the Cap-Gap extension if: 

• You have maintained your F-1 status
• You are the beneficiary of an H-1B petition that was timely filed by an employer that is cap-subject
• The H-1B petition requests a start date of October 1st and a change of status inside the U.S.
  • If you have applied for the H-1B via consular processing, you do not qualify for the Cap-Gap Extension.

The Cap-Gap Extension is automatically applied to a student’s SEVIS record. As such OGS is able to provide proof of the extension only if a student has been deemed eligible by USCIS.

If Your H-1B Petition was Filed During Your 60-Day Grace Period:

If your sponsoring employer filed the H-1B petition during your 60-day grace period, your Cap-Gap Extension will allow you to remain in the U.S. until the start date of your H-1B (unless your petition is rejected, denied, or withdrawn). However, your work authorization will not be extended, and you must stop working as of the expiration date on your EAD. 

Please Note: Once your SEVIS record completes for the change of status to H-1B, your F-1 status has ended, and OGS is not able to “revert” your status back to F-1.

You can learn more about eligibility for the Cap-Gap Extension here.

Please fill out this e-form: Cap Gap I-20 Request.

You will need to provide proof of a qualifying “pending” or “approved” H-1B petition. If you are able to do so, OGS will issue you an updated I-20 reflecting your Cap-Gap Extension of status, and extension of OPT/STEM work authorization if applicable.

OGS DOES NOT advise students to submit an application for the STEM Extension after the expiration date of your OPT EAD, even when a student has received the Cap-Gap Extension. It is the experience of OGS and other institutions that applications for the STEM Extension have a very high rate of denial when they are submitted to USCIS beyond the OPT EAD expiration date.

If a student chooses to submit an application for the STEM Extension after their Cap-Gap Extension has been applied but before their OPT EAD has expired, they are advised to also submit a letter to USCIS informing them of the date discrepancy that may exist between the actual OPT end date and the Cap Gap Extension end date (September 30). The letter should advise the adjudicators at USCIS that if the STEM Extension is approved, it must be approved based on the actual OPT end date, not based on the end date of the Cap Gap Extension. Please fill out OGS’ inquiry form to request this letter template. 

If a student decides to continue on their STEM extension rather than changing to H-1B, they must ensure that the employer requests the withdrawal of the H-1B petition prior to October 1. If this is not done, the H-1B status will begin on October 1 and the student’s eligibility for the STEM OPT extension will be cancelled.

If a student decides to change to H-1B and not proceed with the STEM OPT extension application, the student should send a letter to the USCIS, requesting that the STEM application is withdrawn.

There are many complexities that an F-1 student may experience when changing their status from F-1 to H-1B.

If your status has already changed or will be changing from F-1 to H-1B, please complete the H-1B Status Change Reporting e-form. An OGS Designated School Official (DSO) will review the request and review your F-1 SEVIS record to ensure any changes are reflected accurately.

You should fill out this e-form:

• To report that your H-1B petition for change of status was approved (I-797A Approval Notice from USCIS)
• To report that your H-1B petition for consular processing was approved (I-797B Approval Notice from USCIS) and you have re-entered the U.S. in H-1B status.
• To report that your H-1B petition for consular processing was approved (I-797B Approval Notice from USCIS) but you have NOT re-entered the U.S. in H-1B status yet.
• To report that your H-1B petition was withdrawn by your employer.

If you received a Request for Evidence (RFE) for your H-1B petition that requires you to provide information related to your F-1 non-immigrant status or academic background, please submit the H-1B RFE Response Request e-form.

If your H-1B petition was denied, please submit the H-1B Denial Notification e-form. OGS will review the denial notice to determine if any institutional support from OGS or Northeastern is appropriate.

If you are approved for H-1B change of status, as of the effective date of the H-1B period (October 1 in most cases for cap-subject employers), your F-1 status ends and your SEVIS record automatically completes. Unfortunately, in cases where students lose their H-1B employment (due to layoffs, for example) after they have already changed to H-1B, there are typically no options to reclaim unused OPT/STEM OPT time or to have their previous SEVIS record reactivated. Students should carefully consider this when applying to change to H-1B status, and be prepared that they may need to consult with an immigration attorney for next options if their H-1B employment is terminated, and that simply reverting back to F-1 status is often not possible.

Students whose F-1 status has or will be changing to H-1B status, or whose H-1B employment has been withdrawn, revoked, or denied, should submit the H-1B Status Change Reporting e-form (or H-1B Denial Notification e-form) as soon as possible so that OGS may review your case. If your H-1B was withdrawn/revoked/denied and you have questions related to your F-1 status, please also call OGS at +1 617-373-2310 to make an appointment with an OGS advisor.

If your H-1B Employer Withdraws/Revokes Your Petition:

• Please review the information provided on the USCIS website.
• If your employer can provide evidence that USCIS received the withdrawal notice BEFORE your approved H-1B effective start date, OGS may be able to assist you in submitting a data fix request to SEVP to return your SEVIS record to Active status if you’re otherwise eligible. Please submit the H-1B Status Change Reporting e-form so we can review your case.
• If your employer did not withdraw your H-1B petition until AFTER the approved H-1B effective start date, you are not eligible to have your F-1 SEVIS record returned to Active status. You may have a 60-day grace period during which to find alternative H-1B sponsors or apply for a change of status.
• Advising on your options for H-1B portability, change of status, or adjustment of status is outside of the purview of OGS advisors. We recommend you consult an experienced immigration attorney to discuss these options.
• Please review this additional information provided on the USCIS website regarding options following termination of H-1B employment.

If Your Cap-Subject H-1B Petition is Denied by USCIS:

• Please refer to the guidance provided on the USCIS website.
  • If an H-1B petition filed for an F-1 student with a cap-gap extension is denied, rejected, revoked, or withdrawn, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, revocation, or withdrawal of the petition) to depart the United States.
  • The 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to a status violation, misrepresentation, or fraud. In such cases, the F-1 student is ineligible for cap-gap extension of status and the 60-day grace period. Similarly, the 60-day grace period and cap-gap extension of status does not apply to an F-1 student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both of these instances, students are required to immediately leave the United States.