Automatic H-1B Cap-Gap Relief for OPT Holders

An F-1 student with OPT and a non-STEM degree can obtain an automatic extension of status and, in some instances, work authorization based upon the filing of an H1B case.

Also known as cap-gap relief, it provides the OPT holder with permission to remain in the U.S. beyond the expiration of the OPT until October 1, 2013, provided the H-1B case has been accepted in the FY 2014 Quota for processing and is either pending or approved.

The H-1B case must have been filed before the OPT expiration date.

May students travel outside the United States during a cap-gap extension period and return in F-1 status?

No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period will not be able to return in F-1 status.

The student will need to apply for an H-1B visa at a consular post abroad prior to returning.

As the H-1B petition is for an October 1, 2013 start date, the student should be prepared to adjust his or her travel plans, accordingly.

What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?

F-1 students who have entered the 60-day grace period when the H-1B cap-subject petition is filed are not employment-authorized.

Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).





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