Immigration

Srinivasa Reddy Kandi: Everything You Need to Know About Cap-Gap for F-1 Students Applying for H-1B

February, 08, 2025-11:47

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Everything You Need to Know About Cap-Gap for F-1 Students Applying for H-1B:

On July 29th, employers and legal representatives began receiving notifications regarding additional selections for the second H-1B lottery. The period for filing H-1B cap petitions selected in this lottery spans from August 2, 2021, to November 3, 2021. It is crucial to note that mere selection does not automatically grant an F-1 student cap-gap eligibility.

F-1 students currently on OPT/STEM OPT, or those within their 60-day grace period, should familiarize themselves with the requirements for qualifying for cap-gap. Employers must ensure that H-1B cap petitions are submitted in a timely manner to secure cap-gap eligibility for the F-1 student.

What constitutes cap-gap and how can one qualify?

The regulation addressing cap-gap is found in 8 C.F.R. § 214.2(f)(5)(vi). This regulation allows F-1 students to extend their duration of status and OPT (if applicable) until September 30th of the same year in which the H-1B cap petition is submitted. To qualify for cap-gap, the following criteria must be satisfied:

1. The H-1B cap petition must be filed as a change of status.
2. The H-1B cap petition must be submitted in a timely manner.
3. The H-1B petition must request an employment start date of October 1st of the same year.
4. For those seeking to extend work authorization, the H-1B cap petition must be filed prior to the expiration of OPT/STEM OPT.

When SEVIS receives information about a pending H-1B petition from USCIS, it should update the student's record to reflect the cap-gap extension. If SEVIS does not update the system, the designated school official (DSO) can request a data correction from the SEVP Response Center to add the cap-gap extension to the student's record. With the cap-gap notation, the student may continue working until September 30th (provided the H-1B cap petition was filed before the expiration of OPT), unless the H-1B petition is denied or withdrawn. A denial or withdrawal of the H-1B petition terminates cap-gap eligibility.

Is an F-1 student in their 60-day grace period eligible for cap-gap?

F-1 students who are in their 60-day grace period may qualify for the cap-gap extension, provided they meet the necessary criteria. It is important to note that during this grace period, F-1 students are not permitted to work. If a valid H-1B cap petition is submitted while the student is in the 60-day grace period, their F-1 status will be automatically extended; however, they will still not have work authorization.

What about F-1 students who do not qualify for cap-gap?

F-1 students who do not meet the requirements for a cap-gap extension and whose authorized stay ends before October 1st must depart the United States. Nevertheless, an employer may still submit an H-1B cap petition if the student is chosen in the second lottery, but this will necessitate a request for consular processing.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.