What are the H-1B “Cap” and “Cap-Gap”?
The number of people who can obtain the H-1B status is regulated by a numerical limit, or “cap”, each fiscal year.
- April 1 marks the opening of the H-1B cap filing season, when U.S. Citizenship and Immigration Services (USCIS) begins accepting petitions for H-1Bs for the coming fiscal year.
- The federal fiscal year runs from October 1 to September 30.
NOTE: Institutions of higher education or their affiliated or related nonprofit entities, as well as nonprofit and government research organizations, are exempt from the H-1B cap. They can file H-1B petitions any time of the year and are not subject to the numerical limit. Cap-exempt employers may plan in advance to avoid any gap between OPT and the H-1B status begin date. Since they are exempt from the cap, the information below does not apply.
If a person's H-1B is subject to the cap, and if that person's OPT expires before September 30, the time in between the EAD expiration and October 1 is called the “cap-gap.”
Frequently Asked Questions about CAP-GAP
If you meet all of the following eligibility criteria, you may be entitled to an extension of F-1 status and employment eligibility to cover the “cap-gap” period:
- You have properly maintained F-1 status
- Your employment is subject to the H-1B cap
- Your employer filed an H-1B petition for “Change of Status” (not “Consular Notification”) on or after April 1
- Your EAD expires between April 1 and September 30
- The H-1B petition was filed before your EAD expired
The cap-gap extension of status and work authorization ends on October 1, when the H-1B status begins. The automatic extension of status also applies to your F-2 dependents.
NOTE: If conditions 1-4 above are true but the H-1B petition was filed in the 60-day grace period following the end of your OPT, you are not eligible for the “cap-gap” extension of employment eligibility. You may still be eligible to remain in the United States until October 1 if the H-1B petition is approved. Consult the immigration attorney for your employer for information about this scenario.
NOTE: It is possible with this filing process, that even if selected, the filing window may fall both after the student’s OPT expires and the 60-day grace period ends. In this case, the student should seek appropriate legal advice.
If you meet eligibility criteria 1-5 above, the cap-gap extension of F-1 status and employment eligibility is automatic.
- You do not have to apply for a cap-gap extension.
- USCIS informs SEVIS of the H-1B application and SEVIS updates your I-20 record with a note about the extension of F-1 status and employment eligibility.
After the H-1B Approval Receipt Notice comes and before your EAD expires, you are encouraged to request an I-20 reprint showing the cap-gap information.
- Your employer will probably want to review it and save a copy in your employment records.
- You may also need the updated I-20 for other purposes, like getting a new driver's license.
Generally, you should wait to request the Cap-Gap I-20 Reprint until you have the H-1B Approval Receipt Notice. If your registration is selected in the lottery, this does not mean that you are eligible for the Cap-Gap extension. Your sponsor should receive an I-797 notice of your selection, but they still need to file the H-1B petition in a timely manner in order for you to be eligible for the Cap-Gap extension.
- If you have not received the H-1B Approval Receipt Notice yet, let your employer know that you need a copy as soon as it arrives. When you get the Receipt Notice, you can request a Cap-Gap I-20 Reprint.
- It is only appropriate to request a Cap-Gap I-20 Reprint earlier if your EAD will expire within 30 days.
Before requesting the Cap-Gap I-20 Reprint, please check your OPT Employer Record and update with any changes, as necessary.
To request your Cap-Gap I-20 Reprint, contact the OIA.
Remember, the Office of International Affairs is simply reprinting the I-20 for you. If USCIS and SEVIS have made the proper updates, processing time is the same as for any other reprint (5-10 business days).
NOTE: Unfortunately, sometimes USCIS and/or SEVIS fail to make the proper updates to a student's SEVIS record. In this case, it may become necessary for an International Student/Scholar Advisor (ISSA) to intervene on your behalf by filing a “data fix” ticket with SEVIS Help Desk. The Help Desk must process the data fix before the Office of International Affairs can produce your Cap Gap I-20 Reprint; their processing time can range from weeks to months. If a data fix is necessary, the ISSA who receives your reprint request will inform you and maintain communication with you.
Reporting Requirements During Cap-Gap Extension Period
Students who remain in the U.S. under the “Cap Gap” regulation remain in F-1 status and must continue to report:
- address changes through the Office of Registration and Records
- employment information to the IC through the OPT Employment Information web form
What if the H-1B Petition is Denied?
If your H-1B petition is denied, the “cap gap” extension of employment eligibility will immediately terminate.
- Typically, you will have 60 days (from notification of denial) to depart the U.S.
- If, however, the denial is because of a status violation, there is no grace period.
After an H-1B petition with Change of Status is filed, consult your employer's immigration attorney about all international travel, whether or not your EAD is expired.
If your EAD is expired, you will not be able to re-enter the U.S. in F-1 status.
You may consult your employer's attorney about whether and when you may be eligible to re-enter the U.S. in H-1B status.