AUTHOR:  Helen Pihlstrom.

Employers who have submitted cap-subject H-1B petitions should remember that additional actions may be necessary by their current employees who are working pursuant to F-1 Optional Practical Training employment authorization, or OPT.  In many cases, an employee’s OPT employment authorization will expire in the spring or summer after an H-1B cap petition has been filed on his or her behalf, but before the H-1B effective date of October 1st. Some may be eligible for an additional 17-month STEM extension based on their program of study at school; many others are not. The time after OPT expires but before the H-1B takes effect is the “cap gap.”

Fortunately, employees facing the cap gap may have their employment authorization extended by their sponsoring universities to cover the cap gap period. The extension is not automatic and employees should plan carefully to ensure they timely apply for and obtain the necessary extension(s) from their schools. Universities may require an appointment.

To obtain proof of continuing status, employees should go to their Designated School Official (DSO) with evidence of a timely filed H-1B cap petition (indicating a request for change of status, rather than for consular processing). Employees whose OPT will expire in June or later should wait for USCIS to issue an official receipt notice for the petition and then promptly bring a copy of the notice to his or her DSO. The DSO will issue a cap-gap I-20 Form showing an extension until September 30th. Employees facing an April or May F-1 expiration and who have not received a receipt notice from USCIS may provide a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt instead. The DSO will issue a preliminary cap-gap I-20 showing an extension until June 1st; once the receipt notice is issued, the employee should return to the DSO for the remainder of the cap gap extension.

Once granted a cap gap extension, employees should not travel outside the United States during the cap gap period or he or she will not be permitted to re-enter in F-1 status and would 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 start date, the employee should be prepared to adjust his or her travel plans accordingly.