H-1B Cap Gap for F-1 Students Without a Rejection or Decision

H-1B Cap Gap for F-1 Students Without a Rejection or Decision
May 19, 2017

USCIS announced on May 3, 2017, that data entry for this year’s cap cases has been completed and that petitions not selected in the lottery would begin to be returned. However, it may take several weeks for all unselected petitions to be returned.

 

In the interim, for those cases where neither a receipt nor a rejection notice has been received, students may continue to benefit from an automatic cap-gap extension until a rejection notice is received. Once such a notice is received, the F-1 has the standard 60-day grace period starting from the date of the rejection notice or their program end date, whichever is later, to depart the US. The F-1 does not have work authorization during the 60-day grace period.

 

For more information, see: Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations.

 

Proof of Eligibility: The cap-gap extension of OPT is automatic for eligible students, and eligible students are not required to obtain evidence of cap-gap eligibility.  However, students may choose to obtain proof of continued employment authorization, and the only evidence available is an updated Form I-20 showing an extension of OPT.

 

If a student opts to obtain an updated Form I-20, s/he should go to his/her Designated School Official (DSO) with evidence of a timely-filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an updated Form I-20, showing an extension until June 1.

 

If the H-1B petition is selected for adjudication, and the student opts to obtain evidence of continued employment authorization through October 1st, s/he should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue another updated Form I-20, showing an extension until October 1st. In such situations, the student can continue to work while the update to his or her Form I-20 is being processed. Because the Cap-Gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.